Commissioner Of Income-Tax, Jalandhar-I, Jalandhar v. Avinash Chander Ghai Huf

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH I.T.A. No. 571 of 2008 Date of Decision: 15.11.2011 Commissioner of Income-Tax, Jalandhar-I, Jalandhar vs. Avinash Chander Ghai HUF ........Appellant .......Respondent I.T.A. No. 578 of 2008 The Commissioner of Income-Tax-III, Ludhiana ........Appellant vs. M/s Ludhiana Stock Exchange Association Ltd., LSE Building,Feroze Gandhi Market, Ludhiana .......Respondent I.T.A. No. 579 of 2008 The Commissioner of Income-Tax-III, Ludhiana ........Appellant vs. M/s Ludhiana Stock Exchange Association Ltd., LSE Building,Feroze Gandhi Market, Ludhiana .......Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTAHON'BLE MR. JUSTICE G.S. SANDHAWALIA Present:Mr. Vivek Sethi, Advocatefor the appellant HEMANT GUPTA, J. This order shall dispose of three appeals i.e. I.T.A. No.571 of 2008(Commissioner of Income-Tax, Jalandhar-I, Jalandharvs. Avinash Chander Ghai HUF), I.T.A. No. 578 of 2008 (The Commissioner of Income-Tax-III, Ludhiana vs. M/s LudhianaStock Exchange Association Ltd., LSE Building, Feroze GandhiMarket, Ludhiana) and I.T.A. No. 579 of 2008 (Commissioner ofIncome-Tax-III, Ludhiana vs. M/s Ludhiana Stock ExchangeAssociation Ltd., LSE Building, Feroze Gandhi Market, Ludhiana).The facts are being taken from I.T.A. No. 571 of 2008. The Revenue is in appeal under Section 260A of theIncome Tax Act, 1961 (for short 'the Act') raising substantial questionof law arising out of order dated 22.2.2008 passed by the IncomeTax Tribunal,Amritsar Bench, Amritsar (for short 'the Tribunal) inrevenue appeal bearing I.T.A. No. 73(ASR)/2006 for the assessmentyear 2002-03. Entire case of the revenue is based upon the additionalevidence which was sought to be produced before Income TaxAppellate Tribunal. The Income Tax Appellate Tribunal has returnedthe following findings, declining the said application:- “3. The department has filed an application foradditional evidence. To contest this application, theassessee has submitted that such evidence is notadmissible and that it is allowed to be admitted, it wouldamount to fresh assessment. It has been stressed thatthis evidence was not considered by the authoritiesbelow. 4. Admittedly, the evidence now sought to beproduced by the department was not considered beforethe authorities below. Therefore, this cannot now beallowed to be produced. The application for additional evidence filed by the department is thus rejected.” The argument of learned counsel for the appellant is thatin terms of Rule 29 of the Appellate Tribunal Rules, 1963, theappellant is entitled to adduce additional evidence, as such evidencewas not considered by the Assessing Officer or by the Commissionerof Income Tax in appeal. We do not find any merit in the saidcontention. Rule 29 of the Appellate Tribunal Rules, 1963 reads as under:- “29. The parties to the appeal shall not be entitled toproduce additional evidence either oral or documentarybefore the Tribunal, but if the Tribunal requires anydocument to be produced or any witness to be examinedor any affidavit to be filed to enable it to pass orders or forany other substantial cause, or, if the income-taxauthorities have decided the case without giving sufficientopportunity to the assessee to adduce evidence either onpoints specified by them or not specified by them, theTribunal, for reasons to be recorded, may allow suchdocument to be produced or witness to be examined oraffidavit to be filed or may allow such evidence to beadduced.” Rule 29 of the Appellate Tribunal Rules, 1963 reads as under:- “29. The parties to the appeal shall not be entitled toproduce additional evidence either oral or documentarybefore the Tribunal, but if the Tribunal requires anydocument to be produced or any witness to be examinedor any affidavit to be filed to enable it to pass orders or forany other substantial cause, or, if the income-taxauthorities have decided the case without giving sufficientopportunity to the assessee to adduce evidence either onpoints specified by them or not specified by them, theTribunal, for reasons to be recorded, may allow suchdocument to be produced or witness to be examined oraffidavit to be filed or may allow such evidence to beadduced.” A reading of the above said rule would show that partiesto the appeal shall not be entitled to produce additional evidenceeither oral or documentary before the Tribunal as a matter ofright. But the Tribunal can permit additional evidence firstly if itrequires any document to be produced or any witness tobe examined or any affidavit to be filed to enable it to pass ordersor for any other substantial cause, or secondly, if the income-tax authorities have decided the case without giving sufficient opportunityto the assessee to adduce evidence either on points specified bythem or not specified by them. A perusal of the order passed by the Tribunal shows thatthe Tribunal has not found the necessity of such document to beproduced as sought to be produced by the revenue before theTribunal. The second ground on which additional evidence isadmissible is only when Income Tax authorities have decided thecase without giving opportunity to the assessee to adduce evidence.The revenue is in appeal before the Tribunal. The revenue hassought to adduce evidence and not the assessee. It is not the caseof the assessee that any opportunity to adduce evidence was notgranted to the assessee by the Assessing Officer or by theCommissioner of Income Tax. In view of the said facts, we do not find that there is anyillegality in the order passed by the Income-Tax Appellate Tribunaldeclining the Revenue to permit to lead additional evidence. In theabsence of additional evidence, it is finding of the fact recorded bylearned Tribunal which does not give rise to any substantial questionof law. Dismissed (HEMANT GUPTA)JUDGE (G.S. SANDHAWALIA) JUDGE