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2012 (2) TMI 583 - AT - Income TaxAdmission of additional evidence - Held that:- We find that the first appellate authority has indeed relied on certain averments made during the course of hearing, and written submissions filed before him,and the Commissioner of Income-tax based his conclusion on the averments made in this petition, without appreciating that the same have not attained finality, having been not accepted by the judicial authority before which the same have been made. This action of the CIT(A), in this behalf, in our opinion, is bad in law. Further, the assessing officer has no occasion to go through these averments, and offer his comments thereon. In the circumstances, we are of the view that it would be in the interests of justice to set aside the order of the CIT(A) and restore the entire issue to the file of the assessing officer, to re-examine the same and redecide the issue in accordance with law after giving reasonable opportunity of hearing to the assessee. Levy of surcharge - Held that:- We find that issue is covered in favour of the Revenue by the decision of the Apex Court in the case of CIT V/s. Suresh N.Gupta (2008 (1) TMI 396 - SUPREME Court ), wherein it has been held that amendment to the proviso to S.113, though came into operation with effect from 1.6.2002, the same being clarificatory in nature, is applicable even in respect of searches conducted prior to 1.6.2002, and as such the assessing officer was justified in levying surcharge. We accordingly, set aside the order of the CIT(A) on this aspect, allowing this ground of the Revenue. Cancellation of penalty levied by the assessing officer under S.158BFA - Held that:- As we have set aside the order of the CIT(A) and restored the matter to the file of the assessing officer for redeciding the issue and reframing the assessment, this penalty appeal has become infructuous, and on that ground it is liable to be dismissed. We do so, accordingly. We however, hasten to add that while reframing the assessment in accordance with law in pursuance of our directions hereinabove, the assessing officer would be at liberty to initiate fresh proceedings in terms of S.158BFA of the Act, if deemed fit.
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