DY. COMM. OF INCOME TAX, CIRCLE -2, KALYAN vs. KUMAR U. AILANI, ULHASNAGAR
What did the Tribunal hold?
The Tribunal held that the CIT(A) erred in admitting new evidence without giving the AO an opportunity to comment. The matter was restored to the CIT(A) for a reasonable opportunity to the AO to offer his comments on the said letters.
What were the facts?
The Assessing Officer (AO) added unsecured loans of Rs. 19,78,000/- to the assessee's income for not proving creditworthiness and genuineness. The CIT(A) deleted these additions, relying on evidence filed by loan creditors after the assessment order was passed.
What were the issues?
Whether the CIT(A) was justified in admitting new evidence without allowing the AO an opportunity to comment, and whether the additions made by the AO under Section 68 were correctly deleted.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “A” BENCH, MUMBAI
Before: SHRI SHAILENDRA KUMAR YADAV, JM & SHRI RAJESH KUMAR, AM
आदेश / O R D E R PER RAJESH KUMAR, A. M: This appeal by the revenue is directed against the order dated 20.02.2014 of Commissioner of Income Tax (Appeals)-II, Mumbai (hereinafter called as the CIT(A) ) for assessment year 2006-07.The assessee has raised following grounds of appeal:
1. “Whether on the facts and circumstances of the case and in law, the Ld.CIT (A)-II, Thane, has erred in admitting new evidence filed before the AO after the DCIT Vs. Shri. Kumar U. Ailani
assessment order was passed without calling for the report of the AO which is not in accordance with Rule 46A of the I.T. Rules 1962.
The only ground raised by the revenue is against admitting the new evidences by the CIT(A) which are not in accordance with the Rule 46A of the I.T. Rules 1962.
The brief facts of the case are that the assessee filed his return of income on 27.03.2007 declaring total income of Rs.36,74,105/- . The case of the assessee was selected for scrutiny and notices u/s 143(2)& 142(1) of the Act were duly issued upon the assessee. During the course of survey on 20.02.2008 some discrepancies were found and the in consequence the assessee offered Rs.24,94,613/- as income voluntarily. The assessee had filed its return of income tax accordingly. Thereafter the AO framed the assessment u/s 143(3) at Rs.56,52,105/- vide order dated 24.12.2008 by adding unsecured loans to the tune of Rs.19,78,000/- as per detail below.
Shri Dinesh Wadhwani (HUF) Rs.2,00,000/- 2. Shri Dinesh Wadhwani (Indl) Rs.4,90,000/- 3. Smt. Neelu Wadhwani Rs.6,50,000/- 4. Smt. Rinku Chanchlani Rs.5,00,000/- 5. Shri Deepak Wadhwani Rs.1,38,000/- Total Rs.19,78,000/- ========== The above unsecured loans was added to the income of the asessee on the ground that assessee could not proved the creditworthiness and genuineness of the DCIT Vs. Shri. Kumar U. Ailani transactions to the satisfaction of the AO and the requirements of section 68 of the IT Act were also not satisfied despite the several opportunities. The ld. CIT(A) allowed the appeal of the assessee by holding that all these advances were received by A/c payee Cheques and the genuineness of all the transactions was proved by the assessee and therefore, the provision of section 68 of the Act were not applicable.
The ld. DR at the outset brought to our notice that Shri.Dinesh Wadhwani, Dinesh Wadhwani HUF & Smt. Neelu Wadhwani had filed letters in the office of Add CIT, Range-2, Kalyan on 29.12.2008 stating that amount were paid to the assessee in respect of the purchase of shares from M/s. Kumar Plaza Resorts Ltd and the payments were duly shown as investments in their respective case however the assessee had incorrectly shown such payments as loans. Whereas the assessment order was passed on 24.12.2008 exactly 5 days before the date of confirmation letters filed by Wadhwanis. The above details/ reply/ explanation could not be considered by the AO as these were filed after passing the assessment order. The ld. DR further submitted that the admission by the CIT(A) of these evidences without calling for report of the AO accounted to admission of additional evidences. It was not in accordance with Rule 46A of the IT Act, 1962. The ld. DR finally prayed that in the interest of justice, the issue to be restored to the file of the CIT(A) to allow a reasonable opportunity to the AO to comment on these
DCIT Vs. Shri. Kumar U. Ailani evidences. The ld. AR on the other hand strongly objected to the submissions by the DR on the ground that the powers of the CIT(A) is co-terminus with that of the AO and the order passed by the CIT(A) was perfect and as per the provisions of the Act and prayed for upholding the same.
We have heard the rival submissions and perused the material on record. We find from the records that Shri. Dinesh Wadhwani (Indl.), Shri.Dinesh Wadhwani (HUF) & Smt. Neelu Wadhwani had filed copies letters confirming their transactions with the assessee on 29.12.2008 in the office of Add. CIT, Range-2, Kalyan along with the necessary details in respect of the amount given to the assessee whereas the assessment order was passed on 24.12.2008 meaning thereby the assessment order was passed 5 days before the date of filing confirmations. The ld. CIT(A) deleted the additions by relying on the evidences filed by the loan creditors on 29.12.08 without calling for any remand report from the AO and without giving the AO an opportunity to present his views on the matter. In our opinion the interest of the justice would be met if the AO is allowed an opportunity of being heard to comment on the evidences filed by the various creditors after the date of the assessment order. We therefore without commenting on the merit restore the issue back to the file of the CIT(A) with the direction to allow the reasonable
DCIT Vs. Shri. Kumar U. Ailani opportunity to the AO to offer his comments on the said letters and take an appropriate decision on the basis of facts before him as per law.
In the result, the appeal of the revenue is allowed for statistical purposes.
Order pronounced in the open court on 15th January, 2016
Sd/- Sd/- (Shailendra Kumar Yadav) (Rajesh Kumar) �या�यक सद�य / Judicial Member लेखा सद�य / Accountant Member मुंबई Mumbai; �दनांक Dated :15.01.2016 Ps. Ashwini Gajakosh आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent 3. आयकर आयु�त(अपील) / The CIT(A) 4. आयकर आयु�त / CIT – concerned 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड� फाईल / Guard File
More judgments on Section 68
- ACIT Central Bilaspur, Bilaspur vs Arun Kumar Agrawal, SaktiITSSA 26/RPR/2025[2018-19]Status: Disposed21 Oct 2026AY 2018-19
- Neo Incorporation, Rajkot vs DCIT Circle- 1(2), RajkotITA 471/RJT/2026[2012-2013]Status: Disposed21 Oct 2026AY 2012-2013
- Bliss Dealtrade Private Limited, Kolkata vs Income Tax Officer - Ward 9(2) Kolkata…ITA 208/KOL/2026[2012-13]Status: Disposed21 Oct 2026AY 2012-13
- Hemal Paresh Madeka, Rajkot vs Asst.Commissioner of Income Tax…ITA 955/RJT/2026[2020-21]Status: Disposed19 Oct 2026AY 2020-21
- Ajaybhai Dineshbhai Bagdai, Near Central… vs The Income Tax Officer, Ward-1(2)(1), New…ITA 74/RJT/2026[2013-14]Status: Disposed19 Oct 2026AY 2013-14
Recent GST High Court judgments
Search GST case law →- Ayush Sureshchandra Shah vs. State Of GujaratGujarat · 27 Oct 2026
- Sureshchandra Moolchand Shah vs. State Of GujaratGujarat · 27 Oct 2026
- M/S Larsen And Toubro Limited vs. Joint Commissioner Of Central GST And Anr.Delhi · 27 Oct 2026
- T C Global INDIA Private Limited vs. Principal Commissioner Of Central GST, North DelhiDelhi · 27 Oct 2026
- Kamlasana Impex Private Limited vs. Director General Of GST Intelligence (Hq) Delhi) & Anr.Delhi · 27 Oct 2026