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Income Tax Officer, Ward-1(1), Ghaziabad. Ghaziabad. Vs. Shri Avneesh Kumar Agarwal, R-5/115, Raj Nagar, Ghaziabad.
January, 31st 2015
               IN THE INCOME TAX APPELLATE TRIBUNAL
                                 `A' : NEW DELHI
                    DELHI BENCH `A

           BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND
                                GARG, JUDICIAL MEMBER
            SHRI CHANDRA MOHAN GARG,

                              No.1033/Del/2012
                          ITA No.
                                          2008-09
                        Assessment Year : 2008-


Income Tax Officer,              Vs.    Shri Avneesh Kumar Agarwal,
Ward-
Ward-1(1),                              R-5/115, Raj Nagar,
Ghaziabad.                              Ghaziabad.
                                        PAN : ABQPG5131E.
     (Appellant)                            (Respondent)

                                      No.105/Del/2012
                      Cross Objection No.105/Del/2012
                                           2008-09
                         Assessment Year : 2008-


Shri Avneesh Kumar               Vs.
                                 Vs.    Income Tax Officer,
Agarwal,                                Ward-1(1),
                                        Ward-
R-5/115, Raj Nagar,                     Ghaziabad.
Ghaziabad.
PAN : ABQPG5131E.
     (Appellant)                            (Respondent)

             Revenue by           :    Shri Vikram Sahai, DR.
             Assessee by          :    Shri Sanjay Malik, Advocate.

                                  ORDER

PER G.D. AGRAWAL, VP :
      The appeal by the Revenue and the cross-objection by the
assessee are directed against the order of learned CIT(A), Ghaziabad
dated 27th December, 2011 for the AY 2008-09.


2.    In the appeal by the Revenue, following grounds have been
raised:-


       "1. That ld.CIT(A) has erred in law and on facts by
       deleting the addition of Rs.5,98,540/- without
       appreciating the fact that the assessee has failed to
       discharge his onus regarding identity, creditworthiness
                                  2                       ITA-1033/D/2012 &
                                                             CO-105/D/2012


      and existence of creditor, in spite of the various
      opportunities provided to him.

      2. That ld.CIT(A) has erred in law and on facts in
      allowing relief of Rs.6,10,000/- to the assessee without
      appreciating the facts that the assessee had failed to
      discharge his onus to prove the creditworthiness of the
      lenders and genuineness of the transactions.

      3. That ld.CIT(A) has erred in law and on facts in
      allowing relief of Rs.8,72,500/- to the assessee without
      appreciating the facts that the assessee had failed to
      submit supportive evidence to prove the source of fresh
      capital introduced.




      4. That ld.CIT(A) has erred in law and on facts by not
      allowing reasonable opportunity to examine the
      evidence as per the provisions of Rule 46A(3) of the I.T.
      Act, 1961.

      5. Therefore, the order of the ld.CIT(A) be cancelled
      and the order of the AO may be restored.

      6. The appellant craves leave to modify/amend or
      add any one or more grounds of appeal."

3.   In the cross-objection, the assessee has raised the following
grounds:-


      "1. That the loan of Rs.80,000/- from Sh. Deepak Tyagi
      did not involve any element of income chargeable to
      tax in the hand of the appellant. On facts and in law of
      the case, the addition of Rs.80,000/- as income from un-
      explained sources was not warranted and the same
      deserve to be deleted.

      2. That on facts and in law, there was no legal
      warrant to make any disallowance because of non-
      maintenance of stock register and alleged not verifiable
      cash expenses. The addition of Rs.40,000/-, sustained
      by the ld.CIT(A) deserve to be deleted being not based
      on any evidence but on surmise and guess."

4.   At the time of hearing before us, it was pointed out by the
learned DR that in respect of all the three grounds raised by the
                                    3                       ITA-1033/D/2012 &
                                                               CO-105/D/2012


Revenue, learned CIT(A) allowed the relief to the assessee by
considering the additional evidences without passing any order for
admission of additional evidence.       He pointed out from the order of
learned CIT(A) that the assessee filed additional evidence before the
CIT(A). The CIT(A) forwarded the same to the Assessing Officer and
called the remand report.      The Assessing Officer objected to the
admission of additional evidences.         However, the CIT(A) did not
consider the Assessing Officer's objection for admission of additional
evidence and adjudicated the appeal considering the additional
evidence.   He submitted that before relying upon the additional
evidence, the CIT(A) should have passed some order admitting or
rejecting the additional evidence. Since there is no order of admission
of additional evidence by the CIT(A), he was wrong in relying upon the
additional evidence. He, therefore, submitted that the order of learned
CIT(A) should be reversed and that of the Assessing Officer may be
restored.


5.    Learned counsel for the assessee, on the other hand, pointed out
that the Assessing Officer issued notice under Section 142(1) for the
first time on 15th December, 2010 fixing the case on 23rd December,
2010 and passed the order on 28th December, 2010.              Thus, the
assessment was completed without allowing adequate opportunity of
being heard to the assessee.      Therefore, learned CIT(A) was fully
justified in admitting the additional evidences as per the request of the
assessee.   He was fair enough to admit that in the order of learned
CIT(A), there is no mention of the admission of additional evidence.
He, however, stated that the CIT(A) called for the remand report and
assessee's reply on remand report and thereafter considered the
additional evidence which clearly proves that the CIT(A) impliedly
admitted the additional evidence. The omission of mentioning one line
in the order of learned CIT(A) that "the additional evidence has been
admitted" does not mean that the additional evidence has not been
                                  4                      ITA-1033/D/2012 &
                                                            CO-105/D/2012


admitted by him. He, therefore, submitted that the order of learned
CIT(A) should be sustained.


6.   We have carefully considered the submissions of both the sides
and perused relevant material placed before us.     Rule 46A of the
Income-tax Rules, 1962 reads as under:-


      "46A.      (1) The appellant shall not be entitled to
      produce before the Deputy Commissioner (Appeals) or,
      as the case may be, the Commissioner (Appeals), any
      evidence, whether oral or documentary, other than the
      evidence produced by him during the course of
      proceedings before the Assessing Officer, except in the
      following circumstances, namely:-

      (a) where the Assessing Officer has refused to admit
      evidence which ought to have been admitted; or

      (b) where the appellant was prevented by sufficient
      cause from producing the evidence which he was called
      upon to produce by the Assessing Officer; or

      (c) where the appellant was prevented by sufficient
      cause from producing before the Assessing Officer any
      evidence which is relevant to any ground of appeal; or

      (d) where the Assessing Officer has made the order
      appealed against without giving sufficient opportunity
      to the appellant to adduce evidence relevant to any
      ground of appeal.

      (2) No evidence shall be admitted under sub-rule (1)
      unless the Deputy Commissioner (Appeals) [or, as the
      case may be, the Commissioner (Appeals)] records in
      writing the reasons for its admission.

      (3) The Deputy Commissioner (Appeals) [or, as the
      case may be, the Commissioner (Appeals)] shall not
      take into account any evidence produced under sub-
      rule (1) unless the Assessing Officer has been allowed a
      reasonable opportunity ­

      (a) to examine the evidence or document or to cross-
      examine the witness produced by the appellant, or
                                     5                    ITA-1033/D/2012 &
                                                             CO-105/D/2012





       (b) to produce any evidence or document or any
       witness in rebuttal of the additional evidence produced
       by the appellant.

       (4) Nothing contained in this rule shall affect the
       power of the Deputy Commissioner (Appeals) [or, as the
       case may be, the Commissioner (Appeals)] to direct the
       production of any document, or the examination of any
       witness, to enable him to dispose of the appeal, or for
       any other substantial cause including the enhancement
       of the assessment or penalty (whether on his own
       motion or on the request of the Assessing Officer) under
       clause (a) of sub-section (1) of section 251 or the
       imposition of penalty under section 271.]."

7.   Sub-rule (2) of Rule 46A clearly mentions that no evidence shall
be admitted unless the CIT(A) records in writing the reasons for its
admission. Admittedly, there is no recording of reasons by the CIT(A)
for admission of additional evidence. Therefore, this matter needs to
be set aside to the file of the CIT(A). However, at the time of hearing
before us, it was mentioned by the learned counsel that if the order of
learned CIT(A) is not sustained and matter is required to be set aside
to his file, he requested that it would be appropriate to set aside the
matter to the file of the Assessing Officer because adequate
opportunity of being heard was not allowed to the assessee by the
Assessing Officer. Learned DR submitted that his first request would
be to uphold the order of the Assessing Officer but if the matter is to
be set aside, then the matter may be sent back to the file of the
Assessing Officer because then the additional evidence can be
examined by the Assessing Officer.


8.   After considering the arguments of both the sides and the facts
of the case, in our opinion, it would meet the ends of justice if the
orders of authorities below are set aside with reference to all the
grounds raised in the appeal filed by the Revenue and the cross-
objection of the assessee and the matter is restored to the file of the
Assessing Officer.   We order accordingly and direct the Assessing
                                   6                        ITA-1033/D/2012 &
                                                               CO-105/D/2012


Officer to allow adequate opportunity of being heard to the assessee.
The assessee is also directed to produce all the evidences/explanation
before the Assessing Officer.   Thereafter, the Assessing Officer will
pass the order on all the issues raised in the Revenue's appeal or the
assessee's cross-objection afresh in accordance with law.


9.    In the result, the appeal of the Revenue and the assessee's
cross-objection both are deemed to be allowed for statistical purposes.
      Decision pronounced in the open Court on 30th January, 2015.


                 Sd/-                                Sd/-
                     GARG)
     (CHANDRA MOHAN GARG)                           AGRAWAL)
                                              (G.D. AGRAWAL)
        JUDICIAL MEMBER                       VICE PRESIDENT

Dated : 30.01.2015
VK.

Copy forwarded to: -

1.    Revenue                           Ward-1(1), Ghaziabad.
                  : Income Tax Officer, Ward-

2.    Assessee    : Shri Avneesh Kumar Agarwal,
                   R-5/115, Raj Nagar, Ghaziabad.

3.    CIT
4.    CIT(A)
5.    DR, ITAT

                             Assistant Registrar

 
 
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