ITO 22(3)1, NAVI MUMBAI vs. DINESH SHIVAJIRAO GHADAGE, NAVI MUMBAI

During hearing, the ld. DR, Shri Purushottam Kumar, advanced arguments, which is identical to the ground raised. It was contended that the assessee filed additional evidence before the Ld. Commissioner of Income Tax (Appeal) and in turn, the First Appellate Authority neither provided opportunity to the Assessing Officer nor sought remand report from him. Our attention was invited to para 4.1 (page-6 of the impugned order). It was also explained that it is violation of principle of natural justice and contravention of Rule-46A of the rules. On the other hand, the ld. counsel for the assessee, Shri Rajesh Athavle, explained that the assessee took advances towards booking of the flats but fairly agreed that no confirmation was filed.

2.1. We have considered the rival submissions and perused the material available on record. We have also gone through the order of the Ld. Commissioner of Income Tax (Appeal) and find that during appellate proceedings, before the Ld. Commissioner of Income Tax (Appeal), the assessee filed additional evidence and merely claim that it was merely trade advances. There is a finding in para-4.1 of the impugned order that due to inadvertent mistake the amount of Rs.20 lakh contributed by reliable developer was shown under the head trade advances, whereas, it was contribution towards joint venture. These details were neither before the Assessing Officer nor such plea was raised. Likewise, in para-5 of the impugned order, there is an addition evidence, which was also neither confronted to the Assessing Officer nor any remand report was sought. Identical is the situation with respect to development agreement dated 04/04/2005, which is also additional evidence. On consideration of factual matrix, we are satisfied that the additional evidence filed before the Ld. Commissioner of Income Tax (Appeal) or new plea raised before him was neither confronted to the Assessing Officer nor any remand report was sought from him. In such a situation, we are in agreement with the argument of the ld. DR, that there is a contravention of the Rule 46A of the rules, therefore, we remand this file to the file of the Assessing Officer to examine the claim of the assessee afresh. The assessee is directed to either produce the confirmation from the concerned parties or produce the parties to the satisfaction of the Assessing Officer. The assessee be given opportunity of being heard with further liberty to furnish necessary evidence, if any, in support of his claim. Thus, the appeal of the Revenue is allowed for statistical purposes only.