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Income Tax Appellate Tribunal, DELHI BENCH “A”, NEW DELHI
Before: SHRI H.S. SIDHU & SHRI J.S. REDDY
Date of Hearing: 28-01-2016 Date of Order : 05-02-2016
ORDER
PER H.S. SIDHU, JM
This appeal by the Assessee is directed against the Order of the Ld. Commissioner of Income Tax (Appeals), Rohtak dated 21.02.2012 pertaining to assessment year 2009-10 on the following grounds:-
“1. The Ld. CIT(A) has erred in law and on facts in upholding the addition of Rs. 34,66,289/- made by the AO, being credit entries in the bank statement of the assessee as income from other sources, ignoring the fact that the assessee carrying on business u/.s 44AE of plying heavy vehicles and there are deposit as well as withdrawals in the bank statement for the purpose of business of the assessee and income should be estimated on the basis of proviviions of section 44AE of the Act.
2. The CIT(A) has erred in law and on facts by ignoring the fact that addition of Rs. 34,66,289/- being total credit entries in the bank statement also includes returned income of Rs. 21,0000/- and agriculture income ofRs. 4,40,000/- as shown in the return.
3. The CIT(A) has erred in law and on facts by upholding the addition of Rs. 4,40,000/- made by the AO, being agriculture income declared by the assessee despite of the fact that the assessee has showing agriculture income year to year and returns were accepted by the department and further produce evidences in his support.
4. The CIT(A) has erred in law and on facts by upholding the addition made by the AO, instead he ought to have provide justice by applying GPINP rate( as applicable in the business of plying heavy vehicles) for determination of income and allowing depreciation claim, as it is not disputed that the assessee owns 5 heavy vehicles and carrying on the business of plying vehicles during the year.
5. The CIT(A) has erred in law and on facts in not admitting the additional evidence in terms of provisions of Rule 46A of the Income Tax Rules, 1962 despite of the fact that the assessee had duly submitted the application under provisions of Rule 46A of the Act with supporting evidences.
The CIT(A) has erred in law and on facts in not admitting the additional evidence in terms of provisions of Rule 46A of the Income Tax Rules, 1962 by ignoring the fact that appellant was prevented by reasonable and sufficient cause to produce relevant details due to circumstances beyond its control.
The CIT (A) has erred in law and on facts and ought to have accepted and admitted the additional evidence for carrying out the ends of the justice.
The CIT(A) has erred in law by not providing any opportunity to the appellant before rejecting the admittance of the additional evidence ur/46A .
The appellant craves leave to add, amend or alter any of the grounds of appeal at the time of hearing ofthe.tappeal, if deemed necessary, in the interest of justice and equity.”
The facts narrated by the Revenue Authorities are not disputed by both the parties, hence, the same are not being repeated here for the sake of convenience.
At the time of hearing Ld. Counsel of the Assessee requested for another opportunity of being heard to file the proper Application under Rule 46A of the I.T. Rules, 1962. Ld. DR has not raised any serious objection on the request of the Ld. Counsel of the Assessee.
After hearing both the parties, we are of the view that the ld. CIT(A) has rejected the Application under Rule 46A by holding as under vide para no. 7 at page no. 5of the impugned order:-
“7. I have considered the issue and the submissions made by the AR alongwith the application for admission of additional evidence. The only additional evidence sought to be produced was a photo copy of an alleged lease agreement by Sh. Ram Bhaj regarding the lease of 10 acres of land to the assessee. No case has been made out by the AR that the admission of the additional evidence falls under any fo the four provisios of Rules 46A. It cannot be argued that the assessee did not have the lease agreement dated 13.03.2007 till the date of completion of assessment by the AO. In view of the above, the additional evidence is not admitted in terms of the provisions of Rule 46A.”
4.1 After going through the aforesaid finding of the Ld. CIT(A), we are of the view that Ld. CIT(A) has rejected the Application of the Assessee under Rule 46A without any cogent reasons. In the interest of justice, we are of the view that Application for admission of additional evidence should be admitted by the ld. CIT(A), because the additional evidences are very much essential to decide the issue in dispute. Keeping in view of the above, we set aside the issue in dispute to the file of the AO with the directions to decide the same afresh under the law, after giving adequate opportunity of being heard to the assessee. Howeover, the Assessee through its Authorised Representative is directed to file the additional evidences, if any, before the AO, to decide the same, as per rules.
In the result, the appeal filed by the Assessee stands allowed for statistical purposes.
Order pronounced in the Open Court on 05/2/2016.