2018 (12) TMI 985

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....he assessee, it was dismissed in default. However, on Miscellaneous Application filed by the assessee, the appeal was recalled vide order dated 29/06/2018. The assessee is in appeal before the Tribunal in second-round of proceedings. 3. Briefly stated facts of the case are that the assessee filed return of income on 20/03/2010 disclosing income of Rs. 1,75,680/-. The case was selected for scrutiny and notice under section 143(2) of the Income-tax Act, 1961 (for short 'the Act') was issued and complied with. In the scrutiny proceedings, the Assessing Officer observed that the assessee sold a plot of land for Rs. 50 Lacs, however, valuation of the same as per the stamp value authority was at Rs. 79,85,000/. The assessee filed computation of capital loss of Rs. 12,128/- which is reproduced in the assessment order. For ready reference, same is reproduced as under: Cost of sale consideration:     Rs.79,85,000/- Indexed Cost of acquisition:       (Purchase cost of 681884X582/259=1532264     (-)Rs.1532,264 Cost of improvement 31.3.98 1475000 2593505   31.03.99 1688750 2800150   ....

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....No. 4735/Del/2012, restore the matter to the file of the Ld. CIT(A) for deciding afresh observing as under: "..................We find that on 11.07.2012 the junior counsel of the assessee attended and requested for adjournment but it was refused. From the order of CIT(A), we also find that the CIT(A) has not dealt with the issue that on what ground the adjournment was sought while rejecting the assessee's adjournment application. After looking to the facts of the case, we find it appropriate and in the interest of justice to restore the issue to the file of CIT(A) for deciding afresh after providing the opportunity of being heard to the assessee. The assessee is also directed to cooperate in the appellate proceedings and submit the necessary details before the CIT(A)......" 7. In the second round of proceedings before the Ld. CIT(A), the assessee claimed that the expenditure of Rs. 38,79,730/-was incurred as under: financial year Amount (Rs.) Explanation of expenditure 1997-98 14,75,000 For filing and levelling of plot and raising of boundary wall 1998-99 16,88,750 Improvement on the plot 1990-00 7,15,980 Removing the garbage, cleani....

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....e 29 of ITAT Rules for admission of additional evidences along with a paper book. In the application filed, the assessee has given a new twist to the nature of cost of improvement claimed. In the application, the assessee has submitted that amount of Rs. 38, 79, 730/-claimed in the return of income as cost of improvement, was actually cost incurred in relation to acquisition of the plot of the land. The assessee in the application has submitted that (i) She was allotted a plot of 250 m² by the Ghaziabad development authority (GDA), which she agreed to sale to the buyers for consideration of Rs. 8,50,000/- and against which she received advance of Rs. 3,00,000/-. (ii) She was however allotted plot of 341.54 m² as against the earlier plot of 250 m² and made payment of Rs. 6,81,884/- to the GDA. As the buyers were not willing to pay additional amount due to enhanced area of the plot from 250 m² to 341.5 m², a dispute arose between the assessee and the buyers. (iii) Complaints were filed before police authorities and a settlement was filed before the Police authorities to close the dispute and according to which the assessee paid Rs. ....

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....he Hon'ble ITAT the CIT(A) in the second order passed the order on the first date of hearing i.e. 29.08.2014 even assessee filed the balance sheets showing the same figures as shown in the agreement/settlement deed/payment made by the assessee shown in the receipt. Thus the assessee did not get proper and reasonable opportunity before the assessing officer who completed the assessment hurriedly and also before CIT(A) who first time passed ex-parte order and second time decided the appeal on the very first date. The AR also did not ask the assessee about the documents and being lady I was also not aware about the assistance required to be given to the AR in the Income Tax matters. The documents dated 1994 to 1998 were also traceable after such a long period and after hectic efforts these documents were traced and filed now. Copy of original documents are hereby produced for your kind consideration which would justify the claim made by the assessee in the return and in the balance sheet." 15. In support of the contention that the Tribunal can admit the additional evidences not only on sumo motu action , but also on application filed by one of the parties of the appeal, the Ld. Cou....

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....rror or omission on the part of one of the parties to lead evidence at the appropriate stage. Once it is found that the party intending to lead evidence before the Tribunal for the first time was prevented by sufficient cause to lead such an evidence and that this evidence would have material bearing on the issue which needs to be decided by the Tribunal and ends of justice demand admission of such an evidence, the Tribunal can pass an order to that effect. 14. The next question which arises for consideration is as to whether the exercise of discretion in the instant case permitting the additional evidence by the Tribunal, is apposite? It is undisputed that rule 29 of the Rules is akin to Order 41 Rule 27(1) of the Code of Civil Procedure. The true test in this behalf as laid down by the Courts, is whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. The legitimate occasion, therefore, for exercise of discretion under this rule is not before the Appellate Court hears and examines the case before it, but arises when on examining the evidence as it stands, some inh....