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2006 (11) TMI 144 - HC - Income TaxAdmission of certain additional evidences - failed to prove sale proceeds of the utensils - Whether the order of the CIT(A) as upheld by the Tribunal is legally tenable, the same being in violation of rule 46A of the Income-tax Rules, 1962? - HELD THAT:- We fully agree with the view taken by Haji Lal Mohd. Biri Works case [2005 (1) TMI 61 - ALLAHABAD HIGH COURT] and on the other hand, in the backdrop of the facts and circumstances placed before us, the view expressed in Smt. Prabhavati's case [1998 (2) TMI 107 - BOMBAY HIGH COURT], in our considered opinion, would not help the assessee/respondent herein rather it would support the plea of the Revenue/appellant. We found that without recording any valid or plausible reason, the CIT allowed the assessee to produce the additional evidence. More so, no opportunity of hearing was ever given the Revenue/appellant. It is admitted that the assessee produced the xerox copy of the sale bill and receipt only before the CIT when no such document was placed before the assessing authority as reflected from the order. It was categorically held by the assessing authority therein that the sale transactions of the utensils were not proved in spite of opportunities afforded. That being the position, we are constrained to hold that the appellate authority acted in violation of rule 46A and the acceptance of the xerox copy of the sale proceeds as additional evidence de hors rule 46A of the Rules, because the appellant is not entitled to produce oral or documentary evidence afresh before the appellate authority, as a matter of right. Under special and/or certain circumstances only/as mentioned, in clauses (a), (b), (c) and (d) of rule 46A(1) additional evidence can be adduced. Rule 46A itself contains the principles of natural justice. That being so, sub-rule (4) of rule 46A does not permit to accept any additional evidence in contravention of the provisions of sub-rules (2) and (3) of rule 46A. The appellate authority is not permitted to act whimsically while exercising the jurisdiction under rule 46A of the Rules. Accordingly, it is a fit case for remand for proper adjudication of the case by following the established procedure laid down under rules 46A(1), (2) and (3) of the Rules which we order accordingly. The impugned judgment and order passed by the Tribunal is hereby quashed and set aside - Substantial question of law so formulated is answered accordingly. The appeal is remanded to the Commissioner of Income-tax - In the result, the appeal succeeds and stand allowed to the extent indicated above.
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