SANTOSH BHARTIYA,NEW DELHI vs. ITO, NEW DELHI

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH ‘G’ : NEW DELHI) BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER and SHRI A.T. VARKEY, JUDICIAL MEMBER ITA No.2349/Del./2011 (ASSESSMENT YEAR : 2005-06) Shri Santosh Bhartiya, vs. ITO, Ward 23 (1), C-47, 1st Floor, Greater Kailash – I, New Delhi. New Delhi – 110 048. (PAN : AFDPB8543B) (APPELLANT) (RESPONDENT) ASSESSEE BY : Shri Anil Kumar Gupta, FCA REVENUE BY : Smt. Richa Rastogi, Senior DR Date of Hearing : 10.11.2015 Date of Pronouncement : 27.11.2015 O R D E R PER A.T. VARKEY, JUDICIAL MEMBER :

This appeal, at the instance of the assessee, is filed against the order of CIT (Appeals)-XXIII, New Delhi dated 28.02.2011 for the assessment year 2005-06. 2. At the outset of the hearing, the ld. AR for the assessee raised the ground no.4 of grounds of appeal regarding non-admission of additional evidences by the lower authorities and the said ground read as under :-

“4. Both ld. CIT (Appeals) as well as ld. ITO have defied the principles of Natural Justice & Equity while denying the Admission & due Cognizance of so-called additional evidences viz. affidavits, ITR (s), Bank statements etc. of donors (pertaining to Rs.30 lakhs addition, which was not show-caused even during the impugned re-assessment proceedings) during the course of first appellate proceedings, and, while so doing instead of stating the merits & logics for admission (or non- admission), the comments upon the quality of additional evidences have been made by both the authorities.”

Ld. AR submitted that the additional evidences filed by the assessee were not accepted by the ld. CIT (A) which goes to the root of the issues involved in the instant appeal. He submitted that the comments of the AO were asked by the ld. CIT (A) on the additional evidences furnished by the assessee and the AO in the remand report submitted that during the course of reassessment proceedings the assessee did not submit the details as asked for even after taking adjournments. Ld. AR further submitted that the AR, in his rejoinder to the AO’s remand report before the ld. CIT (A), submitted that the AO had commented on the quality of the sufficiency of additional evidence and no comments had been made with regard to the prima facie admissibility of the same. He, therefore, pleaded that the ld. CIT (A) may be directed to admit the additional evidences and then decide the issues on merits and prayed that the matter be restored to the file of the assessee.

(4) I have considered the issue of admission of additional evidence and it is seen that the Assessing Officer has specifically recorded in the assessment order that details regarding the credit of Rs. 30 lakhs in assessee's bank account had been called for but not submitted despite sufficient opportunities granted in this regard. The Assessing Officer in the remand proceedings has also reiterated the same comment on the issue. The Authorized Representative has claimed that the requisite details were never asked at the re-assessment stage which is not borne out of facts as per record. It is clear that the non submission of information asked for is not caused by any reasons beyond the control of the appellant. The evidence sought to admit to be considered at the appellate stage was clearly available with the assessee and therefore, should have been submitted before the Assessing Officer to enable him to carry out necessary verification. As such, there is no Case for admission of additional evidence.”

We find from the submissions made by the ld. AR before the ld. CIT (A) that the AO had not asked the assessee for the details regarding impugned credit of Rs.30 lakhs, which has not been controverted by the CIT(A) by going through the assessment proceeding wherein, the correspondence, if any, between the AO and the assessee, could have thrown light regarding the said contention of the assessee. Without doing the said exercise a bald statement to the effect that this contention is not borne out of facts cannot be countenanced and so we find that there was sufficient reason for the assessee not to produce the said details before the AO during reassessment. We note that the AO had not made any comments with regard to the prima facie admissibility of the same. We also find force in the submissions of the ld. AR that the additional evidences are required to substantiate the claim of the assessee and it goes to the root of the issues in dispute. Therefore, we are of the opinion that the non-acceptance of the additional evidences by the ld. CIT (A) is contrary to the principles of natural justice. Therefore, after hearing both the sides and keeping in view the facts of the case and in the interest of justice, equity and principles of natural justice, we direct the assessee to file the additional evidences for substantiating its claim before the ld. CIT (A) and direct the ld. CIT (A) to accept and admit the same. Accordingly, we restore the appeal of the assessee to the file of the ld. CIT (A) on all the issues and direct the ld. CIT (A) to decide the appeal de novo after admitting the additional evidences, of course, after providing adequate opportunity of being heard to the assessee. We order accordingly.