MR. ZAKIR HASAN,NAINITAL vs. ITO, NAINITAL

The relevant facts relatable to the issue are that the assessee is engaged in the business of trading in mutton etc. and in the year under consideration returned an income of Rs.2,20,146/- which was processed. However the Assessing Officer in the course of the re-assessment proceedings required the assessee to explain unsecured loans in the balance sheet. Finding the evidence filed to be not sufficient and complete, an addition of Rs.2,50,000/- was made for the reasons set out in para 6 of the assessment order. Apart from that on account of assessee’s inability to relate two entries to sales in KNS Bank Ltd., Mallital, Nainital, Saving Bank A/c No.-3980 further addition of Rs.98,569/- was made.

The additions were challenged in appeal before the First Appellate Authority. In the appellate proceedings in order to supplement the evidences found to be not sufficient and complete by the AO, the assessee sought to file fresh evidences. However, these were rejected by the CIT(A) on the reasoning that they were not supported by an appropriate application under Rule 46A.

Aggrieved by this the assessee is in appeal before the Tribunal. 5. The Ld. Sr. DR relied upon the order in support of rejection of additional evidence, no valid reason could be afforded and Remand of the appeal was not opposed. 6. I have heard the submissions and perused the material available on record. considering the same, I am of the view that in the interests of substantial justice fresh evidence relatable and relevant to the additions deserves to be admitted as it goes to the very root of the matter. The record shows that the assessee relied upon his written submission dated 26.03.2013 before the AO. The evidence filed was faulted with by the AO on the ground that the documents, confirmations supported by bank statement only had been filed and creditworthiness in regard to the loans obtained from Sh. Asif Jahan, PAN-ADWPJ2416N and from assessee’s mother and Shri Santosh Kumar remained unestablished. Similarly the addition made on account of the credit entries of Rs.55,000/- + Rs.43,569/- on 14.07.2009 & 05.02.2010 also being relatable to sales was also not accepted as relevant evidence was considered to be insufficient. It is seen that all this was communicated to the assessee in order dated 29.03.2013. Whether insufficiency of evidence was confronted to the assessee or not before the passing of the order is not coming out from the record. The record shows that the assessee sought to file fresh evidence to meet the shortcoming pointed out by the AO in his order. However, the said attempt was not made by moving a petition for admission of fresh evidence made under Rule 46A as per law. Thus it was rejected. 7. Considering the fact that evidently the assessee did not have the benefit of proper legal advise, I am of the view that the Ld. CIT(A) in all fairness should have pointed this procedural shortcoming to the assessee enabling him to fulfill the procedural requirements. Considering the overall factual, legal & procedural matrix which exist to render justice, I am of the view that in the peculiar facts and circumstances of the case and in the interests of substantial justice the Page 2 of 3