H. K. Pujara Builders vs. ACIT (ITAT Mumbai)

It is an admitted fact that the statement taken from Shri Jagdish Prasad Purohit was not considered by the AO. Under the scheme of the Act, the order passed by the assessing officer is being contested by the assessee before Ld CIT(A) and thereafter, by both the parties before the Tribunal, if they feel aggrieved by the order passed by Ld CIT(A). After passing the assessment order, the assessing officer becomes functus officio and hence, if any material or information comes to the knowledge of the AO subsequently, then the assessing officer is required to follow the course of action provided under the Act and the Income tax Act does not provide for modification of the order that has already been passed. The appellate procedure has been designed to adjudicate the matters that were originally framed in the assessment order. Hence, in our considered view, it may not be correct an altogether new material at this stage. Further, the Ld A.R has submitted that Shri Jagdish Prasad Purohit has not implicated the assessee in the statement and he has retracted from the statement by filing an affidavit. He has also furnished a copy of retraction statement. These limited facts show that the statement given by Shri Jagdish Prasad Purohit and its reliability are debatable. Since the additional evidence sought to be relied upon by the revenue is a debatable one; since the same was not considered or relied upon by the AO and since alternative course of action is available to the revenue under the Act to deal with the same, in our view, it should not be admitted at this stage. Accordingly we are of the view that the grounds urged by placing reliance on the same are also liable to be dismissed. Accordingly we decline to admit the additional evidence filed by the revenue and the revised grounds urged by the revenue in connection there with are also dismissed.