income tax
vijayasathya
(Querist) 25 May 2009
This query is : Resolved
Dear Friends,
kindly Let me clarify on the following,
My Client is a govt.civil contractor and he is subjected to Tax audit u/s.44 AB of the IT Act.The Asst.was completed by the A.O.u/s. 143(3)due to non-production of books of accounts even after 5 or 6 notices.But the assessee asked for time extention to produce the books of accounts due to misplacement of the same.The A.O. denied and demand notice was sent along with the asst.order for Rs.13 lakhs.The Assessee preferred an appeal before the CIT (A).On the hearings of the CIT (A) the books were found and produced before the Hon`ble CIT (A).The CIT (A) remanded the case to the A.O. for the correctness and completness of the books.I,as POA produced the books ,before the A.O.on 16/03/2009.Again The A.o.Asked for further more evidence which the same was produced on 19/03/2009.On 04/05/2009 Ie.after a month the A.o.by in his remand report surprisingly invoking the provisions of Rule 46 (1) a to D of the IT Rules that he is not supposed to be admitted the Addtional evidence produced by the assessee where sufficient oppurtunity were given to the assessee on the proceedings of the assessement.
My query to your goodself is,
(1)Why the Learned A.O.has not refused the addtional evidence ( Here Books of accounts) at the first instance by invoking the said rule.
(2) Could I argue that since the A.O. called for the hearing on the matter of the said remand report,it is implied that he has admitted the addl.evidence sought for on the dates of 16 th & 19 th of march 2009
(3) Can I adduce that the addl.evidence meant in the said rule does not apply to the books of accounts.B`cos books of accounts is the PRIMARY EVIDENCE WITHOUT WHICH THE TRUE INCOME can`t be arrived.
Your co-operation at this crucial juncture is very much appreciated. Also I need anu case laws citation or rulings in this regard
Thanking You,
R.Vijaya Sathya,
Advocate
A V Vishal
(Expert) 25 May 2009
Dear Vijaya Sathya,
Technically, the A O is right in rejecting the books as the additional evidence produced attracts provisions of Rule 46 A of the Income Tax Rules which states that
except in the following circumstances, namely :
(a) where the Assessing Officer has refused to admit evidence which ought to have been admitted ; or
(b) where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the Assessing Officer ; or
(c) where the appellant was prevented by sufficient cause from producing before the Assessing Officer any evidence which is relevant to any ground of appeal ; or
(d) where the Assessing Officer has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal.
In your query itself you have stated that books were not produced despite 6 notices, secondly you claim it is a Tax Audit case, so, Point 1. It is presumed that the assessee is maintaining books of accounts. Point 2.It is assumed that the CA has given his Tax audit report only on verification of the books and Point 3. It is statutory for your client to maintain Books of Accounts for 6 years, hence he cannot plead that the books were misplaced, if his plea that the books were misplaced were to be accepted then the burden of proof is on the assessee to prove his claim, in absence of such proof, he cannot challenge the A O. Further, his notice to attend the hearing since the remand report had to sent to CIT(A) doesnot mean he has accepted the books, he has every right to reject the same.
