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2015 (8) TMI 568 - HC - Income TaxViolation of rule 46A of the Rules - CIT(A) allowed part claim of assessee of losses accepting additional evidence - Held that:- Once the document is admitted as additional evidence, for the first time at the stage of appeal, the Department is entitled to put forward its own contention or objection vis-a-vis the same. Here again, two aspects become relevant. If the additional evidence is in the form of any document, the Department shall be entitled to examine or to make its own scrutiny of the same. On the other hand, if the evidence is in the form of deposition of any witness, it shall be entitled to cross-examine him. The first is provided for under clause (a) and the second, under clause (b) of sub-rule (3). Independently, the Department can adduce its own oral or documentary evidence to contradict or rebut the additional evidence that was adduced by a party, for the first time, at the stage of appeal. The record in the instant case does not disclose that the Department has raised any objection whatever for the additional evidence that was produced by the respondent. On the other hand, arguments were advanced with reference to the additional evidence also and the Commissioner of Income- tax (Appeals) dealt with the same. In other words, the Commissioner of Income-tax (Appeals) took into account the additional evidence duly taking into account, the plea of the Department. At any rate, it was not even urged that the Commissioner of Income-tax (Appeals) did not take into account any objection, if any, raised by the Department, for the additional evidence. They wanted opportunity to be given before admitting the fresh evidence. This plea does not derive any support from rule 46A of the Rules. The opportunity to be given to the Department is only in the context of "taking into account the additional evidence" but not "admitting the additional evidence". At the cost of repetition, we observe that the admission of additional evidence is the prerogative of the Commissioner of Income-tax (Appeals) and that in turn is circumscribed by clauses (a) to (d) of rule 46A(1) of the Rules. Learned senior counsel is not able to point out as to which of the conditions have been violated in the process of adjudication by the Commissioner of Income-tax (Appeals). The Tribunal dealt with the contention in detail and did not find any merit in the plea of the appellant. - Decided against revenue.
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