Commissioner Of Income Tax-I, Amritsar v. M/S Central Mall

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH ITA No. 455 of 2009 (O&M)Date of decision: November 10, 2009 Commissioner of Income Tax-I, Amritsar ...Appellant Versus M/s Central Mall ...Respondent CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOELHON'BLE MR. JUSTICE GURDEV SINGH Present: Ms. Naveender P.K. Singh, Advocate, for the appellant. ORDER 1. The revenue has preferred this appeal under Section 260A ofIncome Tax Act, 1961 (for short, “the Act”) against the order of Income TaxAppellate Tribunal, Amritsar Bench, Amritsar, dated 22.1.2009 passed inITA No. 433/ASR/2008 for the assessment year 2003-04, proposing to raisethe following substantial questions of law:- “(i) Whether on the facts and in the circumstances of thecase, the ITAT Amritsar Bench, Amritsar was justified in lawwhile deleting the additions of Rs. 20,21,710/- by including theprovision for future expenses in the value of the work inprogress as on 31.03.2003 relying on the affidavit filed by theassessee which was never produced before the AO and which isin contravention of Rule 46A of the I.T.Rule 1962. ii) Whether on the facts and in the circumstances of the case, the ITAT Amritsar Bench, Amritsar was justified in law byaccepting evidence by way of an affidavit which was notproduced before the AO contrary to the provisions as laid downin rule 46A of the I.T. Rule, 1962.” 2.The assessee is a builder. In the course of assessment theAssessing Officer made addition to the declared income on the basis of thevaluation of the work in progress. CIT (A) upheld the valuation of theassessee. The CIT (A) took into account affidavit filed before it by theassessee reiterating its stand. The view taken by the CIT (A) was upheld bythe Tribunal, rejecting the contention that additional affidavit could not betaken into account, as doing so would violate Rule 46A of the Income TaxRule 1962. The Tribunal observed as under:- “...16. The affidavit filed by the assessee before the learnedCIT (A) was in reiteration of the above contention. Therefore,there was no error on the part of the CIT (A) in admitting suchaffidavit. Rather, it was erroneous on the part of the A.O. Tohold that the third and fourth floors of the Central Mall had notbeen constructed during the year under consideration. That theprovision was allowed for the common facilities and amenities,as above, is also patent on record.”CIT (A) was in reiteration of the above contention. Therefore,there was no error on the part of the CIT (A) in admitting suchaffidavit. Rather, it was erroneous on the part of the A.O. Tohold that the third and fourth floors of the Central Mall had notbeen constructed during the year under consideration. That theprovision was allowed for the common facilities and amenities,as above, is also patent on record.” 3.We have heard learned counsel for the revenue. 4.It is clear that the affidavit filed by the assessee was merereiteration of the contention raised before the Assessing Officer. Rule 46Aapplies when there is additional evidence and not when there is affidavitreiterating the submissions. 5.No substantial question of law, thus arise for consideration. ITA No. 455 of 2009 6.The appeal is dismissed. (ADARSH KUMAR GOEL) JUDGE November 10, 2009 prem (GURDEV SINGH ) JUDGE