TMI Blog2012 (12) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary to facts law. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT (A) has erred in deleting the addition of Rs.75,55.000/- made u/s 68 of the I.T. Act being the unconfirmed share application money. 2.1 The Ld. CIT (A) ignored the finding recorded by the A.O. and the fact that the assessee did not discharged the onus of proving the existence/creditworthiness of the creditors and genuineness of the transactions. 3. On the facts and in the circumstances of the case and in law, the Learned CIT (Appeals) has erred in deleting the addition of Rs.31,80,000/- made on account of advance booking of flats. 3.1 The Ld. CIT (A) ignored the finding recorded by the AO and the facts that the assessee did not file the necessary documents to substantiate its claim during the course of assessment proceeding. 4. The Ld. CIT (A) erred in law by accepting the additional evidences without following the procedure laid down under Rule 46A of the IT Rules 1962. 5. The appellant craves leave to add, to alter, or demand any ground of the appeal raised above at the time of the hearing. 2. The assessee is a company incorporated under Indian Companies Act, 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his shows that the objection against the admission of the additional evidences carries no force whatsoever. Considering the totality of facts and circumstances of the case, it was found that the additional evidences were very relevant and therefore they were considered by the undersigned necessary for disposal of the issue involved in the present appeal. Hence, the aforementioned additional evidences are admitted. Ld. DR pleaded that the CIT (A) forwarded the additional evidences to the Assessing Officer for calling the remand report. In the remand report, the Assessing Officer objected for admission of additional evidences and CIT (A) admitted these evidences and granted the relief to the assessee without giving an opportunity to the Assessing Officer regarding the merits of the additional evidences. Therefore, the issue may be set aside to the file of the Assessing Officer for proper adjudication in respect of the additional evidences field before the CIT (A). This issue is also covered by decision of Hon'ble Delhi High Court in the case of CIT vs. Manish Buildwell Pvt. Ltd. -High Court-Del-IT. 4. Learned AR was also not having any contrary view in this regard. 5. After he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mation letters from the assessee even in respect of receipt of monies from customers by way of cheques. Rule 46A is a provision in the Income Tax Rules, 1962 which is invoked, on the other hand, by the assessee who is in an appeal before the CIT (A). Once the assessee invokes Rule 46A and prays for admission of additional evidence before the CIT (A), then the procedure prescribed in the said rule has to be scrupulously followed. The fact that sub-Section (4) of Section 250 confers powers on the CIT (A) 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 because it would then be open to every assessee to furnish additional evidence before the CIT (A) and thereafter contend that the evidence should be accepted and taken on record by the CIT (A) by virtue of his powers of enquiry under sub-Section (4) of Section 250. This would mean in turn that the requirement of recording reasons for admitting the additional evidence, the requirement of examining whether the conditions for adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (2) No evidence shall be admitted under sub-rule (1) unless the [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)] records in writing the reasons for its admission. (3) The [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)] shall not take into account any evidence produced under sub-rule (1) unless the [Assessing Officer] has been allowed a reasonable opportunity (a) to examine the evidence or document or to cross examine the witness produced by the appellant, or (b) to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the appellant. (4) Nothing contained in this rule shall affect the power of the [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)] to dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, the end result has been that additional evidence was admitted and accepted as genuine without the Assessing Officer furnishing his comments and without verification. Since this is an indispensable requirement, we are of the view that the Tribunal ought to have restored the matter to the CIT (A) with the direction to him to comply with sub-rule (3) of Rule 46A. In our opinion and with respect, the error committed by the Tribunal is that it proceeded to mix up the powers of the CIT (A) 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 CIT (A) under the statute while disposing of the assessee s appeal and the powers conferred upon him under Rule 46A. The Tribunal erred in its interpretation of the provisions of Rule 46A vis- -vis Section 250(4). Its view that since in any case the CIT (A), by virtue of his conterminous powers over the assessment order, was empowered to call for any document or make any further enquiry as he thinks fit, there was no violation of Rule 46A is erroneous. The Tribunal appears to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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