Punjab & Haryana H.C : Whether ITAT was correct in accepting affidavit filed by the assessee 0which was never produced before the Assessing Officer

High Court Of Punjab And Haryana

CIT Vs. Central Mall

Assessment Year : 2003-04

Section : 250,46A

Adarsh Kumar Goel And Gurdev Singh, JJ.

IT Appeal No. 455 Of 2009 (O&M)

November  10, 2009

JUDGMENT

1. The revenue has preferred this appeal under section 260A of the Income-tax Act, 1961 (for short, “the Act”) against the order of the Income-tax Appellate Tribunal, Amritsar Bench, Amritsar, dated January 22, 2009 passed in ITA. No. 433/ASR/2008 for the assessment year 2003-04, proposing to raise the following substantial questions of law :

“(i) Whether on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal, Amritsar Bench, Amritsar was justified in law while deleting the additions of Rs. 20,21,710 by including the provision for future expenses in the value of the work-in-progress as on 31-3-2003 relying on the affidavit filed by the assessee which was never produced before the Assessing Officer and which is in contravention of rule 46A of the Income-tax Rules, 1962.

(ii) Whether on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal, Amritsar Bench, Amritsar was justified in law by accepting evidence by way of an affidavit which was not produced before the Assessing Officer contrary to the provisions as laid down in rule 46A of the Income-tax Rules, 1962.”

2. The assessee is a builder. In the course of assessment the Assessing Officer made addition to the declared income on the basis of the valuation of the work-in-progress. The Commissioner of Income-tax (Appeals) upheld the valuation of the assessee. The Commissioner of Income-tax (Appeals) took into account the affidavit filed before him by the assessee reiterating its stand. The view taken by the Commissioner of Income-tax (Appeals) was upheld by the Tribunal, rejecting the contention that the additional affidavit could not be taken into account, as doing so would violate rule 46A of the Income-tax Rules, 1962. The Tribunal observed as under :

“16. The affidavit filed by the assessee before the learned Commissioner of Income-tax (Appeals) was in reiteration of the above contention. Therefore, there was no error on the part of the Commissioner of Income-tax (Appeals) in admitting such affidavit. Rather, it was erroneous on the part of the Assessing Officer, to hold that the third and fourth floors of the Central Mall had not been constructed during the year under consideration. That the provision 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 mere reiteration of the contention raised before the Assessing Officer. Rule 46A applies when there is additional evidence and not when there is affidavit reiterating the submissions.

5. No substantial question of law, thus arises for consideration.

6. The appeal is dismissed.

[Citation : 332 ITR 320]

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