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2006 (7) TMI 532 - AT - Income TaxDenial of admission of additional evidence by the ld. CIT(A) - rule 46A - where to restore this issue for verification and re-adjudication, whether at the file of ld. CIT(A) or the Assessing Officer - HELD THAT:- After calling of the remand report on merit as contemplated in sub-rule (3) of rule 46A the ld. CIT(A) is precluded with his discretion for refusing to admit the additional evidence. He can reject it as not sufficient or not proved but it is to be construed that evidence has been taken on record. Apart from all these things sub-rule (4) of rule 46A provide vast powers to the ld. CIT(A). He can exercise his discretion for enter any evidence even though the case of the assessee does not fall within the exceptions provided in clauses (a) to (d) of sub-rule (1), the moment ld. CIT(A) arrive at a conclusion that the evidence sought to be produced by the assessee is essential for the just decision of the appeal or for the substantial cause of justice, it is necessary to call such material on record. In that situation interdiction provided in sub-rules (1) and (2) would not come in its way. In view of the above we are of the opinion that ld. CIT(A) has wrongly refused to admit the additional evidence produced by the assessee and his order deserves to be set aside. Ordinarily when the order of the first appellate authority is set aside then issue is to be restored to his file for re-adjudication. But in the present case it is the Assessing Officer who has to examine the additional evidence produced by the assessee in support of its claim of explaining the cash credit. If we restore this issue to the file of ld. CIT(A) it will only increase the multiplicity of the litigation because ld. first appellate authority would have to again call for a remand report from the Assessing Officer. Thus taking into consideration all these circumstances and the assessment year involved i.e 1993-94 we are to the view that if we set aside this issue to the Assessing Officer for re-adjudication then ends of justice would meet. The ground No. 1 of the assessee’s appeal is allowed. In the result, the appeal of the assessee is partly allowed.
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