SH. ARUN AGGARWAL,NEW DELHI vs. ITO, NEW DELHI

Date of Hearing: 20-01-2016 Date of Order : 05-02-2016

ORDER

PER H.S. SIDHU, JM

“1. That the Ld. CIT(A) erred in dismissing all the ground of appeal raised by the appellant without appreciating the appellate submissions judicially. The Ld. CIT(A) did not consider the documents filed during the appellate proceedings, being additional evidence in terms of Rule 46A on technical ground that the appellant has not made any request for admission of additional evidence in accordance with Rule 46A. The Appellate Order passed by the Ld. CIT(A) is totally arbitrary and has no basis.

2. Without prejudice to the above 2.1 The Ld. CIT(A) erred in upholding the addition of Rs. 13,83,674/- made by the AO on account of alleged unexplained deposits in the bank account without considering the facts and submission of the appellant filed during the appellate proceedings.

2.1A. That the lower authorities, otherwise also erred in making addition of entire amount of Rs. 13,83,674/-, deposited in the saving bank account, without appreciating that there are cash withdrawal also which been have re-deposited in the bank account and hence the addition should have been restricted to peak credit in the bank account.

2.2 The Ld. CIT(A) erred in upholding the addition of Rs. 2,83,713/- made by the AO, on account of alleged unexplained cheque deposits in the bank account without considering the facts and submission of the appellant filed during the appellate proceedings.

2.3 The Ld. CIT(A) erred in upholding the addition of Rs. 1,77,274/- u/s. 69C of the Act made by the AO, on account of alleged unexplained Expenditure without considering the facts and submission of the appellant filed during the appellate proceedings. Out of total expenditure of Rs. 1,77,274/-, the appellant claimed expenditure of Rs. 71,040/- on account of tour expenses in the profit and loss account.

2.4 That the orders of the AO & CIT(A) are not based on the facts of the case and as per law and hence additions sustained by the CIT(A) are totally illegal and contrary to binding judicial precedents. 2

3.4 The appellant has also filed a copy of certain documents along with his submissions but there is no index and page numbering and no certificate regarding whether these documents were filed during assessment proceedings. In the assessment order, the A.O. has stated that the required details were not furnished even after repeated opportunities. It therefore, appears that the copy of documents filed with the submissions are additional evidence. The appellant has not made any request for admission of additional evidence in terms of Rule 46A. In view of his claim discussed above that sufficient opportunity was not given during assessment proceedings, it appears that the appellant has filed additional evidence on. the ground that sufficient opportunity was not provided during assessment proceedings. In such a situation, it is necessary to make a request for admissions of additional evidence under rule 46A, specify the additional evidence sought to be filed, and give reasons in terms of Rule 46A for admission of additional evidence. The appellant has failed to do so. He has taken several adjournments and filed these submissions on the final hearing without following the prescribed procedure. Further, for the reasons discussed above, it is clear that 3 sufficient opportunity was given during assessment proceedings, and the appellant’s claim that sufficient opportunity was not given, is not justified. When the appellant has chosen not to avail the repeated opportunities given by the AO, he cannot seek to take advantage of his own failure by filing additional evidence during appellate proceedings. In view of these facts, the additional evidence is not admitted as none of the requirements laid down in Rule 46A are fulfilled in this case.

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 merely on technical grounds. In the interest of justice, we are of the view that opportunity of hearing in the matter for filing the Application under Rule 46A should be given to the assessee, as requested by the Ld. Authorised Representative of the Assessee. Ld. Authorised Representative of the Assessee, Sh. Rajesh Jain, CA undertakes to appear before the Ld. CIT(A) and ready to file the proper Application under Rule 46A and shall cooperate in the appellate proceedings before the ld. CIT(A), if the issue is set aside to the Ld. CIT(A). Keeping in view of the statement made by Sh. Rajesh Jain, CA/Authorised Representative of the Assessee, we set aside the issue in dispute to the file of the ld. CIT(A) with the directions to decide the same afresh under the law, after giving adequate opportunity of being heard to the assessee. The Assessee through Sh. Rajesh Jain, CA/Authorised Representative of the Assessee is directed to file the proper Application under Rule 46A before the Ld. CIT(A), who will decide the same, as per rules. The Assessee is also directed through Sh. Rajesh Jain, CA/Authorised Representative of the Assessee to appear before the Ld. CIT(A) on 20.02.2016 at 10.00 am to represent the case. There is no need to issue notice to the Assessee because the directions for appearance before the Ld. CIT(A) were issued in the Open Court and the same were noted down by Shri Rajesh Jain, CA/Authorised Representative of the Assessee.

Order pronounced in the Open Court on 05/2/2016.