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Income Tax Appellate Tribunal, RAIPUR BENCH, RAIPUR
Before: SHRI RAVISH SOOD, JM & SHRI ARUN KHODPIA, AM
आयकर अपील�य अ�धकरण, रायपुर �यायपीठ, रायपुर IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR �ी र�वश सूद, �या�यक सद�य एवं �ी अ�ण खोड़�पया, लेखा सद�य के सम� । BEFORE SHRI RAVISH SOOD, JM & SHRI ARUN KHODPIA, AM आयकर अपील सं./ (Assessment Year: 2015-2016) Dy. Commissioner of Income Tax , Vs M/s Kewalya Park Circle-3(1), Raipur Shop No. 14, First Floor, Bombay Market, Raipur (C.G) PAN No. :AAIFK 4253 H (अपीलाथ� /Appellant) .. (��यथ� / Respondent) : Shri G. S. Agrawal, CA �नधा�रती क� ओर से /Assessee by राज�व क� ओर से /Revenue by : Shri S. K. Meena, CIT-DR सुनवाई क� तार�ख / Date of Hearing : 12/06/2023 घोषणा क� तार�ख/Date of Pronouncement : 14/06/2023 आदेश / O R D E R Per Arun Khodpia, AM :
The present appeal is directed against the order of ld. CIT(A)-1, Raipur order dated 01.02.2019 for A.Y 2015-16.
The following grounds were raised by the revenue in order to challenge the impugned order of ld. CIT(A):-
1. Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the addition Rs. 2,04,91.144/- on account of provision of section 43CA of the Act?
2. "Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the addition Rs. 2,04,91,144/- made by the AO by ignoring the fact on record that advances claimed to be received in F. Y. 2012- 13 & 2013-14 were not shown in balance sheets for respective years,?
3. "Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the addition Rs. 2,04,91,144/- made by the AO in absence of copy of agreement, proof of receipt of part of sale consideration on or before date of agreement and bank statement reflecting the transaction of receipt as per legal parameter of section 43CA of the Act.?"
4. "Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the addition Rs. 2,04,91.144/- made by the AO by relying merely on the entries made in the list furnished by the assessee or some other documents furnished by him before Ld. CIT(A) if any, by ignoring the fact that the amount of consideration or part thereof has been received by any mode other than cash on or before date of agreement for transfer of asset as per provision of section 43CA(4) of the Income Tax Act, 1961.?"
"Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the addition Rs. 2,04,91,144/- made by the AO by giving a trivial observation that the customers namely Shri Prem Shankar Upadhyay and Smt. Mamta Barhglaya had made payments of advances against sale of asset which is not supported by the fact on record.?"
"Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) having concurrent powers of the AO u/s 250(4) of the Act, was justified in deleting the addition of 2,04,91,144/- made by the AO when the assessee could not substantiate the fact the part of consideration against sale of asset were received prior to date of registration of asset i.e. in F. Y. 2012-13 & 2013-14"
7. Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in allowing relief to the assessee without taking cognizance of facts brought on record by the Assessing officer that the assessee could not furnish the copies of agreement and other necessary documentary evidences regarding receipt of amount of consideration or part thereof for claiming relief under section 43CA of the Act?
8. Whether on points of law and on facts & circumstances of the case, the Id. CIT(A) was justified in ignoring the ratio of Hon'ble Delhi High Court in the case of CIT-II vs. Jansampark Advertising & Marketing (P) Ltd reported in [2015] 56 taxmann.com 286(Delhi) held that "though it is obligation of assessing officer to conduct proper scrutiny of material, in even of assessing officer failing to discharge his functions properly, obligation to conduct proper inquiry shifts to commissioner Appeals) and Tribunal and they cannot simply delete addition made by assessing office on ground of lack of inquiry"
"Whether on points of law and on facts and circumstances of the case, the Ld. CIT(A) was justified in giving a decision, thereby without considering and distinguishing the ratio of the judgment of the cases such as Rameshwar Prasad Bagla 68 ITR 653 (Allahabad) & Homi Vs) CIT41 ITR 135, 142 by (Supreme Court) wherein it is stated that the totality of circumstances must be considered in a case of circumstantial evidences and the totality of the circumstances has to be taken into consideration and the combined effect of all those circumstances is determinative of the question as to whether or not a particular act is proved.
"Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the addition of Rs. 53,36,566/- made by the AO by giving a finding that the capital expenses are not to be disallowed ignoring the 11. "Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in accepting the fresh evidence produced by the assessee without allowing the AO if any, proper opportunity to examine the same, thereby violating the provision on law under Rule 46A of IT Rules?" 12. "Whether on points of law and on facts & circumstances of the case, the ld. CIT(A) was justified in deleting the addition of Rs. 2,04,91,144/- and Rs. 53,36,566/- ignoring the fact available on record viz assessee could not furnish the copies of agreement and other necessary documentary evidences regarding receipt of amount of consideration or part thereof, claim of assessee regarding receipt of advance in previous year not supported by its own audited books of account, claim of capital expenditure in profit and loss account, thereby rendering a decision, which is perverse?" 13. "Whether on points of law and on facts & circumstances of the case, the ld. CIT(A) has erred in law by holding the decision in favour of the assessee and against the revenue though there is no nexus between the conclusion of fact and primary fact upon which without conclusion is based? 14. The order of Ld. CIT (A) is erroneous both in law and on facts 15. Any other ground that may be adduced at the time of hearing.”
At the very outset of the hearing before us, the ld. CIT-DR has submitted that the revenue would like to first assail the Ground No. 11 of the revenue, wherein it was the grievance of the revenue that ld. CIT(A) was not justified in accepting fresh evidence produced by the assessee without allowing the ld. AO to examine such additional evidence and to rebut on the same. The ld. CIT(A) has erred by violating the provisions of rule 46A of the IT rules by not providing a reasonable opportunity of confronting to the ld. AO with the additional evidence to offer her comments/observation on the same.
The ld. CIT-DR further drew our attention to page no. 12 of the assessment order wherein the AO has made observations that the reply of the assessee was not supported with any data regarding the cheques received in the previous year. In this regard, the ld. AO has reproduced the entries of the note-sheet dated 29.12.2017, the same is extracted as under:- “The above reply was no supported with any data regarding the cheque was received in previous years. Therefore, vide note-sheet entry dated 29.12.2017 the following discrepancies were brought to the notice of the AR :-
1. 1. No complete sale deeds are submitted by the counsel, therefore, it cannot be verified whether the assessee has received the first cheque was previous years or not.
2. As referred to point no. 1(B)(e) (regarding F.Y. in which first cheque was received) no supporting documents were produced or submitted.
3. After several reminders no proof in support of electricity expenses was produced.
4. On reply dated 23.11.2017 also, advance from customer and sale deed weren't enclosed, though the word "enclosed" was mentioned.”
5. The ld. CIT-DR further drew our attention to the order of ld. CIT(A) in para 2.3, wherein the issue of addition under sub-section (3) of section 43CA was decided. The ld. CIT(A) has referred to certain sale agreement and entered into in March 2014, having mentioned about receipt of advances by the assessee from the buyers’. The ld. CIT-DR further submitted that the sale agreement based on which ld. CIT(A) has decided the issue were never furnished by the assessee before the ld. AO, such additional evidence were furnished before the ld. CIT(A) but with utter violation of rule 46A of I.T. Rules. Neither, the AO was confronted with such AO based on such additional information. It was therefore, requested by the ld. CIT-DR that in all fairness for preservations of substantial justice, the matter should be remanded back to the files of ld. CIT(A) for fresh adjudication, additional evidence should be confronted with ld. AO and remand report may be called for, if so desire.
6. In response, the ld. AR of the assessee has submitted that, admittedly, certain documents which were represented on behalf of the assessee before the ld. CIT(A) were not before the ld.AO, however, ld. CIT(A) has analysed and examined the issue in light of all the information, evidence and after understanding circumstances of the matter, thus, has decided the issue very judiciously. The ld. AR, however, has agreed that for the sake of justice even if the matter is restored back to the files of ld. CIT(A), they have no objection.
We have considered the rival submissions, since certain additional evidence were submitted before the ld. CIT(A) which were never furnished before the ld. AO, therefore, ld. AO has no occasion to examine such documents to analyse the same while deciding the issue raised by invoking the provisions of section 43CA. The contention of the revenue in this matter has significant merit and in order to attain the substantial justice, we are of considered opinion that in all fairness, as agreed by both the parties, all the issues raised in the instant appeal should be restored back to the file of ld. CIT(A) for adjudicating the same afresh and we do so.
As we have not adjudicated appeal of the revenue in the present case on merits and restored the issues back to the files of ld. CIT(A) in terms of our observations herein above with regard to non-compliance of rule 46A of I.T. Rules at first appellate stage, the appeal of the revenue is partly allowed.