TMI Blog2012 (7) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... rule has to be strictly complied with so that the rule is meaningfully exercised and not exercised in a routine or cursory manner. Sub-rule (3) of Rule 46A, interdicts the Commissioner (Appeals) from taking into account any evidence produced for the first time before him unless the AO has had a reasonable opportunity of examining the evidence and rebut the same. Therefore, we set aside the issue to the file of the Assessing Officer to be decided de novo - Decided in favor of Revenue for statistical purposes. - ITA No.5094/Del./2011 - - - Dated:- 31-5-2012 - SHRI RAJPAL YADAV, SHRI B.C. MEENA, JJ. ASSESSEE BY : Shri Krishan Kant, Advocate REVENUE BY : Shri Raj Tandon, CIT DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the additional evidence submitted before him. Ld. DR also relied on the decision of Hon'ble Delhi High Court in the case of CIT vs. Manish Buildwell Pvt. Ltd. reported in 204 Taxman 106 (Delhi). 4. On the other hand, the ld. AR objected to it and pleaded that the CIT (A) has exercised the powers conferred u/s 250 (4) of the Income-tax Act, 1961 by issuing summons to the bank. Further, the assessee has only submitted copies of the bank statement and the certificate of the bank. Therefore, these should not be treated as additional evidence. 5. We have heard both the sides on the issue. After hearing both the sides in detail, we find that assessee had submitted various additional evidences before CIT (A). CIT (A) had not given any findin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en in respect of receipt of monies from customers by way of cheques. Rule 46A is a provision which is invoked, on the other hand, by the assessee who is in an appeal before the Commissioner (Appeals). Once the assessee invokes rule 46A and prays for admission of additional evidence before the Commissioner (Appeals), then the procedure prescribed in the said rule has to be scrupulously followed. The fact that subsection (4) of section 250 confers powers on the Commissioner (Appeals) to conduct an enquiry as he thinks fit, while disposing of the appeal, cannot be relied upon to contend that the procedural requirements of rule 46A need not be complied with. If such a plea of the assessee is accepted, it would reduce rule 46A to a dead letter b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence can be produced at the first appellate stage only when conditions stipulated in the rule 46A are satisfied and a finding is recorded. The conditions prescribed in rule 46A must be shown to exist before additional evidence is admitted and every procedural requirement mentioned in the rule has to be strictly complied with so that the rule is meaningfully exercised and not exercised in a routine or cursory manner. A distinction should be recognized and maintained between a case where the assessee invokes rule 46A to adduce additional evidence before the Commissioner (Appeals) and a case where the Commissioner (Appeals), without being prompted by the assessee, while dealing with the appeal, considers it fit to cause or make a further enqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as admitted and accepted as genuine without the Assessing Officer furnishing his comments and without verification. Since this is an indispensable requirement, the Tribunal ought to have restored the matter to the Commissioner (Appeals) with the direction to him to comply with sub-rule (3) of rule 46A. The error committed by the Tribunal is that it proceeded to mix up the powers of the Commissioner (Appeals) under sub-section (4) of section 250 with the powers vested in him under rule 46A. The Tribunal seems to have overlooked sub-rule (4) of rule 46A which itself takes note of the distinction between the powers conferred by the Commissioner (Appeals) under the statute while disposing of the assessee's appeal and the powers conferred upon h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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