Commissioner Of Income Tax-19, Mumbai v. Sudhir S. Jhunjhunwala

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 1749 OF 2013WITHINCOME TAX APPEAL NO. 1766 OF 2013WITHINCOME TAX APPEAL NO. 2046 OF 2013WITHINCOME TAX APPEAL NO. 2048 OF 2013WITHINCOME TAX APPEAL NO. 2070 OF 2013WITH INCOME TAX APPEAL NO. 2170 OF 2013 Commissioner of Income Tax-19, Mumbai Vs.Sudhir S. Jhunjhunwala ..Appellant ..Respondent .... Mrs. S.V. Bharucha, Advocate for Appellant. .... P.C.: CORAM : M.S. SANKLECHA & G.S. KULKARNI, JJ.DATED : 14 SEPTEMBER 2015 These six appeals by the revenue under Section 260A ofthe Income Tax Act, 1961 (the 'Act') challenges a common orderdated 29 January 2013 passed by the Income Tax AppellateTribunal (the 'Tribunal') in respect of Assessment Years 2002-03 to2007-08. 2.The common question of law raised in all the six appealsfor our consideration reads as under: “Whether on the facts and in the circumstances of thecase and in law, the Tribunal has ignored the legalprovisions of Rule 46A of the I.T. Rules, by upholdinglegally untenable action of CIT(A) of admittingadditional evidence in clear disregard of the provisionof Rule 46A?” 3.A search was conducted on the respondent-assessee'spremises on 13 March 2008. Consequent thereto, assessmentorders dated 15 December 2009 were passed under Section 144 r/w153A of the Act. 4.Being aggrieved by the orders dated 15 December 2009,the respondent-assessee filed appeals to the Commissioner ofIncome Tax (Appeals) (the 'CIT(A)'). Before the CIT(A), therespondent-assessee sought to produce additional evidence interaliaon the ground that the same could not be filed before the AssessingOfficer. The CIT(A) forwarded all the additional evidences soughtto be led by the respondent-assessee to the Assessing Officer toS.S.DESHPANDE2 / 7 obtain his comments on the admissibility of such additionalevidence. On 26 May 2010, the Assessing Officer through a properchannel submitted his response in respect of additional evidencesought to be produced by the respondent-assessee. The reportdated 26 May 2010 of the Assessing Officer offered his commentson the additional evidence sought to be provided as under: “Regarding admissibility of additional evidences filedby the assessee, the undersigned is the opinion that,the assessee had failed to furnish particulars duringthe course of assessment proceedings even thoughsufficient opportunity was given before passing the ex-parte assessment order u/s 144. However, in theinterests of natural justice, the additional evidencesmay be admitted as the assessee could not file theseevidences during the course of the assessmentproceedings. The additional evidences filed by the assessee wereexamined by calling further explanation from theassessee.” 5.On the basis of the above report dated 26 May 2010, CIT(A) considered the additional evidence led by the respondent- assessee before him. On consideration of all the material beforehim, the CIT(A) by a common order dated 18 June 2010 partlyallowed the appeals of the respondent-assessee for A.Y. 2002-03 to2007-08. 6.The revenue being aggrieved by the order dated 18 June2010 of the CIT(A) particularly allowing the additional evidence inbreach of Rule 46A of the Income Tax Rules, 1962 (the 'Rules') filedappeal to the Tribunal. The Tribunal on examination of thematerial facts available as well as order of the CIT(A) came to theconclusion that the respondent-assessee was prevented fromsufficient cause from leading evidence before the Assessing Officerand the Assessing Officer had himself submitted that additionalevidence should be admitted in the interest of justice and madecomments on the merits of the additional evidence. Thus, theTribunal held that Rule 46A of the Income Tax Rules, 1962 has notbeen transgressed and dismissed the revenue's appeal. 7.Ms. Bharucha, the learned Counsel for the revenuesubmits that the respondent-assessee had not appeared before theS.S.DESHPANDE4 / 7 7.Ms. Bharucha, the learned Counsel for the revenuesubmits that the respondent-assessee had not appeared before theS.S.DESHPANDE4 / 7 Assessing Officer in respect of various notices issued to him beforepassing of the assessment order. In the above view, the additionalevidence ought not to have been admitted and considered by theappellate authorities. 8.We find that no fault can be found with the orders of theCIT(A) as well as the Tribunal. This is for the reason that theAssessing Officer had himself in response to the CIT(A) for hiscomments on admissibility on such additional evidence has in hisreport had submitted that the additional evidence filed by theassessee has to be admitted in the interest of natural justice as therespondent-assessee could not file this evidence during the course ofthe original proceedings before him. In view of the remand reportclearly indicating that there was sufficient ground to admit andconsider additional evidence, no fault can be found with the orderof the CIT(A) as upheld by the Tribunal in admitting andconsidering the additional evidence in terms of Rule 46A of theRules. Further the question of failure to produce the necessaryevidence before the original authority and the reasons for that failure are all questions of appreciation of facts and in the absenceof the findings been shown to be perverse and/or arbitrary, noquestion of law arises for our consideration. 9.Accordingly, all the six appeals are dismissed. No orderas to costs. [G.S. KULKARNI, J] [M.S. SANKLECHA, J.] Order. CERTIFICATE Certified to be true and correct copy of the original signed