DCIT 9(2)(2), MUMBAI vs. CITYGOLD EDUCATION RESEARCH P. LTD, MUMBAI
What did the Tribunal hold?
The Tribunal held that while admitting additional evidence during appellate proceedings is permissible, the AO must be given an opportunity to examine and rebut such evidence. Since this opportunity was not provided, the CIT(A)'s order was set aside.
What were the facts?
The assessee claimed an advance of Rs. 67,50,000/- from M/s Surya Builders and Developers, which was disallowed by the AO as an unexplained cash credit. The CIT(A) allowed the assessee's appeal after admitting additional evidence.
What were the issues?
Whether the CIT(A) erred in deleting the addition by admitting additional evidence without giving the AO an opportunity to examine it.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cases cited in this judgment(4)Show listHide list
Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.
- Nemi Chand Kothari v. CIT340 citing264 ITR 254 · 2003 · HC
- Commissioner of Income Tax v. Navodaya Castles Pvt. Ltd.216 citing367 ITR 306 · 2014 · HC · Read judgment
- Smt. Prabhavati S. Shah v. CIT186 citing231 ITR 1 · 1998 · HC
- CIT v. Titan Securities Ltd.9 citing357 ITR 184 · 2013 · HC · Read judgment
Income Tax Appellate Tribunal, MUMBAI BENCHES “C”, MUMBAI
Before: SHRI R.C.SHARMA (AM) & SHRI RAM LAL NEGI (JM)
PER RAM LAL NEGI, JM
This appeal has been preferred by the revenue against impugned order dated 29/05/2015 passed by the Ld. CIT(Appeals)-16, Mumbai, for the Asst. year 2012-13, whereby the Ld CIT(A) allowed the appeal preferred by the assessee against assessment order dated 17/02/2015 passed u/s 143 (3) of the Income Tax Act, 1961 (for short ‘the Act’).
Brief facts of the case are that the assessee a Private Limited company, engaged in the business of providing instructional and research facilities, conducting educational programs and acquiring agricultural plots and related activities, filed its return of income declaring loss of Rs. 37,30,631/-. The return was processed u/s 143(1) of the Act and after scrutiny assessment order was passed assessing the income of assessee at Rs. 30,29,370/- and book profit u/s 115JB at Rs. (-)41,43,579/- after making disallowance of Rs. 67,50,000/- u/s 68 of the Act, claimed by the assessee as advance received from M/s Surya Builders and developers. Feeling aggrieved by the assessment order, the assessee preferred first appeal before the Ld. CIT(A). The Ld. CIT(A) after hearing the assessee allowed the appeal and directed the A.O to delete the addition made on account of unexplained cash credit.
Aggrieved by the impugned order, the revenue is in appeal before the Tribunal raising the following effective grounds of appeal:-
1. “Whether on the facts and circumstances of the case and in law, the CIT(A) has erred in deleting the addition of Rs. 67,50,000/- made u/s 68 of the I.T.Act by the A.O ignoring the fact that assessee company has not furnished basic details like the loan confirmation and PAN of the loan creditor to prove the genuineness of transaction.
2. Whether on the facts and circumstances of the case and in law, the CIT(A) was misguided in making factual incorrect finding that during the course of assessment proceedings the identity of the creditor stands proved by furnishing balance confirmation, name & address, PAN, ledger confirmation, bank statement reflecting receipt of loan whereas the assessment order clearly states that the assessee did not furnish confirmation of account from lender.”
4. Before us the Ld. Departmental Representative (DR) submitted that the A.O has rightly treated the amount of Rs. 67,50,000/-, shown by the assessee as advance received from M/s. Surya Builders & Developers, as unexplained cash credit u/s 68 of the Act, as the assessee did not furnish balance sheet and income tax return of the aforesaid company to prove its creditworthiness and genuineness of the transaction, even after getting sufficient opportunity. The assessee also failed to produce statements of accounts and confirmation etc. to substantiate its claim. The Ld. DR further submitted that the A.O has passed the assessment order relying on the judgments of Hon’ble Delhi High Court passed in CIT vs. Titan Securities, 357 ITR 184, and In CIT vs. Navodaya Castle Pvt. Ltd. 367 ITR 306. The Ld. CIT(A) has allowed the appeal of the assessee on the basis of additional evidence adduced by the assessee during appellate proceedings without giving notice to the assessing officer concerned.
5. On the other hand the Ld. Counsel for the assessee vehemently reiterated the stand of the assessee taken before the Ld. CIT(A) and submitted that the Ld. CIT(A) has rightly deleted the addition made by the A.O. The Ld. CIT(A) has jurisdiction to allow the additional evidence during appellate proceedings under rule 46(A) of the Income Tax Rules. Moreover, the case of the assessee is covered by the judgment of Guwhati High Court in the case of Nemi Chand Kothari vs. CIT (2014) 264 ITR 254 in which it has been held that it is not the business of the assessee to find out whether the source or sources from which the creditor had agreed to advance the amounts were genuine or not. The Ld. counsel further submitted that since the Ld. CIT(A) has deleted the addition in question in accordance with the principles of law laid down by the Hon’ble Supreme Court and the various High Courts and also on the basis of evidence on record, there is no scope to further interfere with the findings of the Ld. CIT(A). Hence, the appeal of the revenue is liable to be dismissed.
We have heard the rival submissions and also perused the material placed on record, including the cases relied upon by the parties before us as well as before the authorities below, in the light of respective submissions of the parties. The only issue to be adjudicated in this case is whether on the facts and circumstances of the case the Ld. CIT(A) has erred in deleting the addition made by the AO u/s 68 of the Act by admitting the additional evidence during the appellate proceedings? Facts on record reveal that the assessee had claimed that it had received an advance of Rs.67,50,000/-from M/s Surya Builders & Developers during the financial year relevant to the assessment year under consideration. The claim of the assessee was rejected by the AO for the reasons that the assessee did not furnish the confirmation from the company concerned and other required details called for.
During the appellate proceedings the assessee submitted an application for production of additional evidence under Rule 46A of the Income Tax Rules 1962. The Ld. CIT(A) admitted the additional evidence and considering the same allowed the appeal of the assessee. As pointed out by the Ld. DR, under Rule 46A the appellant shall not be entitled to produce any evidence before the CIT(A) other than the evidence produced before the assessing officer except where the AO has refuse to admit evidence or where the appellant was prevented by sufficient cause from producing or where the AO has made the order appealed against without giving sufficient opportunity to adduce evidence relevant to any ground of appeal.
8. In Smt. Prabhavati S Shah’s case (1998 231 ITR 1) the Hon’ble jurisdictional High Court has held that that if prima facie evidence is necessary to examine the claim of the assessee, the CIT(A) should consider the necessary evidence in exercise of powers u/s 250(4) of the Act even if the case of the assessee does not fall within conditions prescribed under Rule 46(1) of the Income Tax Rules. Hence, in view of the law laid down by the Hon’ble High Court, there is no illegality in admitting additional evidence during the course of the appellate stage. Moreover, the Ld. CIT(A) has co-terminus power with that of the A.O to verify any fact brought on record even by way of additional evidence. In other words, the Ld. CIT(A) should either himself conduct inquiry/verification qua the additional evidence brought on record and record his findings after giving an opportunity to the AO to rebut the same or the same should be referred to the AO concerned to examine the issue afresh in the light of the additional evidence so admitted. However, it appears that in the present case neither the Ld. CIT(A) has himself verified the facts nor any remand report was obtained from the A.O. Hence, in our considered opinion the Ld. CIT(A) has passed the impugned order in violation of Rule 46A(3), without giving an opportunity of being heard to the AO to rebut the additional evidence adduced before him. The Hon’ble Gujarat High Court in CIT vs. Valimohmed Ahmedbhai(1982) 134 ITR (Guj) has held that where additional evidence is admitted during the course of appeal, the AO should be given an opportunity to meet with the additional material by way of cross examination, counter evidence and urging submissions qua the additional evidence. In the light of the facts of the present case and the principles of law discussed above, we are of the considered view that the AO should get an opportunity to examine the additional evidence admitted by the Ld. CIT(A). We accordingly set aside the findings of the Ld. CIT(A) and restore this issue to the file of the A.O for fresh adjudication in the light of the additional evidence adduced before the Ld. CIT(A), after affording reasonable opportunity of being heard to the assessee.
In the result appeal filed by the revenue for A.Y. 2012-13 is allowed for statistical purpose.
Order pronounced in the open court 31st January, 2017.
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