M/S Salarpur Cold Storage (P) Ltd., ... vs Department Of Income Tax

Dy.C.I.T., Vs M/s Salarpur Cold Storage (P) Ltd., Range-V, Kurauli, Gandhi Ashram, Lucknow. Barabanki. PAN:AAJCS0942B (Appellant) (Respondent)

Appellant by Shri Y. P. Srivastava, D. R. Respondent by None Date of hearing 01/04/2015 Date of pronouncement 21/04/2015

ORDER

PER A. K. GARODIA, A.M.

This is Revenue's appeal directed against the order passed by learned CIT(A)-II, Lucknow dated 23/05/2013 for the assessment year 2009-2010.

2. The grounds raised by the Revenue are as under:

"1. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.1,20,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

2. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.1,00,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

3. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.5,00,000/-

2 as income from undisclosed sources made on the basis of impounded papers and documents.

4. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.1,10,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

5. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.20,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

6. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.3,75,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

7. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.5,00,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

8. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.1,75,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

9. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.2,00,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

10. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.7,50,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

11. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.2,21,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

3 12. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.3,00,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

13. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.1,00,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

14. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.4,00,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

15. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.3,00,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

16. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.2,60,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

17. The Ld. Commissioner of income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.68,335/- as income from undisclosed sources made on the basis of impounded papers and documents.

18. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.36,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

19. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.1,56,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

4 20. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.1,84,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

21. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.75,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

22. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.8,58,100/- as income from undisclosed sources made on the basis of impounded papers and documents.

23. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.2,00,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

24. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.6,00,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

25. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.5,00,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

26. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.1,52,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

27. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.94,000/- as income from undisclosed sources made on the basis of impounded papers and documents.

28. The Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.11,000/- as 5

income from undisclosed sources made on the basis of impounded papers and documents.

29. Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in admitting the additional evidence in violation f Rule 46A of IT Rules, 1962 without giving an opportunity to Assessing Officer to examine and cross verify the evidence produced by the assessee before the CIT(A).

30. Ld. Commissioner of Income tax(Appeals) has erred in law and on facts in deleting the addition of Rs.1,06,327/- as undisclosed investment u/s 69B of Income tax Act, 1961 made on basis of Rent Register impounded during survey carried out u/s 133 A of Income tax Ac , 1961."

3. This appeal was last fixed for hearing on 25/02/2015. On this date, an application was moved by Shri Neeraj Kumar Rai, Advocate and Learned A.R. of the assessee for adjournment and accordingly, adjournment was granted and appeal was fixed for hearing on 01/04/2015. On this date, none appeared on behalf of the assessee and there is no request for adjournment and therefore, we proceed to decide this appeal of the Revenue ex-parte, qua the assessee.

4. Learned D.R. of the Revenue supported the assessment order. He also submitted that the addition made by the Assessing Officer was deleted by CIT(A) on the basis of additional evidence, which were accepted by him in spite of the objection of the Assessing Officer in remand report that such additional evidence should not be accepted in view of the provision of Rule 46A. He also submitted that there is no finding of CIT(A) that the provisions of Rule 46 are satisfied and therefore, accepting the additional evidence and deciding the issue on that basis is not proper and justified.

5. We have considered the submissions of Learned D.R. of the Revenue, perused the material available on record and gone through the orders of the 6

authorities below. We find that CIT(A) has reproduced the remand report in Para 4(4) of his order and in the same, it is reported by the Assessing Officer that additional evidence submitted after a gap of about one year from the date of filing of appeal, should not be accepted in view of the provisions of Rule 46A. Before that, in Para 4(3), it is noted by CIT(A) that it was submitted by the assessee before him that the explanation along with the evidences were filed in assessment proceedings but specific opportunity was not allowed by the Assessing Officer on the point he was not satisfied. We also find that it is reported by the Assessing Officer in the remand report that the perusal of the order of the earlier year will reveal that the Assessing Officer has given sufficient opportunity to the assessee to explain all the entries and therefore, there was no occasion for admission of fresh evidence. When we examine the assessment order, we find that it is noted on Para 4 of the assessment order that on 26/09/2011, Shri Sanjeev Rastogi, FCA and AR appeared and filed a part reply. It is also noted that further notice u/s 142(1) dated 08/11/2011 with detailed questionnaire was issued and served upon the assessee on the same day. Thereafter it is noted by the Assessing Officer in Para 5(1) that the assessee has not submitted explanation of every entry vide written submissions dated 21/03/2011. We find that as per the final submissions of the assessee reproduced by the Assessing Officer on pages 2 to 8 of the assessment order, for some of the entries it was stated by the assessee that it does not pertain to the assessee but the assessee could not produce any documentary evidence in this regard. For some other entries, the assessee did not offer any explanation or reconciliation. The assessment order is dated 26/12/2011. When the Learned A.R. of the assessee has appeared before the Assessing Officer on 26/09/2011 and filed a part reply and thereafter notice u/s 142(1) was issued on 08/11/2011 with detailed 7

questionnaire with reference to impounded material and the reply was furnished by the assessee on 21/12/2011, it cannot be said that sufficient opportunity was not provided by the Assessing Officer to the assessee. Even after notice u/s 142(1) dated 08/11/2011, the assessee was having more than 1½ months to submit the reply but even on 21/12/2011, the assessee did not submit complete reply and the Assessing Officer had no option but to pass assessment order on 26/12/2011 because the assessment was getting time barred on 31/12/2011. Under these facts, we do not find any force in the stand taken by CIT(A) that sufficient opportunity was not provided by the Assessing Officer. Therefore, in our considered opinion, the admission of additional evidence is not proper and therefore, the consequential relief allowed by the CIT(A) is not sustainable. We, therefore, reverse the order of CIT(A) and restore that of the Assessing Officer.

6. In the result, the appeal of the Revenue stands allowed.

(Order was pronounced in the open court on the date mentioned on the caption page)

Sd/. Sd/.

(SUNIL KUMAR YADAV) ( A. K. GARODIA ) Judicial Member Accountant Member

Dated:21/04/2015 *C.L.Singh

Copy of the order forwarded to : 1.The Appellant 2.The Respondent. 3.Concerned CIT 4.The CIT(A) 5.D.R., I.T.A.T., Lucknow Asstt. Registrar