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2019 (4) TMI 702 - AT - Income TaxAdmission of additional evidences - Rule 46A compliance - submitted first time before CIT(A) - no remand report was called by learned CIT(A) - HELD THAT:- The Ld. CIT(A) also did not refer/forwarded these additional evidences to AO for verification and comments as no remand report was called by learned CIT(A) from the AO. This is a breach of sub-rule 3 of Rule 46A Rules owing to non forwarding of these additional evidences by learned CIT(A) to the AO for its verification and comments. The principles of natural justice are clearly breached. The procedures as are contemplated are not meant to stifle justice but they cannot be simply given go-bye otherwise there will be break down of Rule of Law . Rule of Law is an important ingredient of basic structure doctrine engrained in our Constitution . The assessee ought to have explained before learned CIT(A) as to what prevented it from submitting these additional evidences before the AO as is required under sub-rule 1 of Rule 46A of the 1962 Rules. There is no explanation given by the assessee for non production of these additional evidences before the AO during the course of assessment proceedings nor learned CIT(A) considered appropriate to record reasons and justification for admitting these additional evidences as is required under sub-rule 1 of Rule 46A. It is not the case of the assessee that learned CIT(A) directed assessee to produce these additional evidences as is contemplated vide sub-rule 4 of Rule 46A. Neither it is a case of the assessee where learned CIT(A) has suo moto directed inquiry as is contemplated u/s 250(4). The instant case before us is not covered by these exceptions. There is no dispute as to proposition canvassed by the assessee that powers of learned CIT(A) are co-terminus with the powers of the AO but Rule 46A cannot be simply given go bye other wise it will become otiose . This is never the intention of law makers. We are afraid that decision of Hon’ble Supreme Court in the case of Kanpur Coal Syndicate [1964 (4) TMI 18 - SUPREME COURT] cannot come to rescue of the assessee as there is no dispute to the proposition that learned CIT(A) powers are co-terminus with powers of the AO but Rule 46A of the 1962 cannot be given a simple go bye. We are afraid that the decision of Hon’ble Bombay High Court in the case of Rallies India Limited [2015 (4) TMI 940 - BOMBAY HIGH COURT] relied upon by the assessee cannot also come to rescue of the assessee. The principles of natural justice are breached in the instant case by learned CIT(A) by not calling for remand report from the AO as well non recording of reasons and justification for admitting these additional evidences which is fatal to sustaining of appellate order passed by learned CIT(A). Addition on account of extensive repairs - leased premises - current repairs - AO alleged that repairs and renovation/improvement of shop/bakery at Bandra is capital in nature giving enduring benefits - Plant and Machinery which was acquired for being installed at Jalal Bakery at Bandra was already capitalized - HELD THAT:- keeping in view the entire factual matrix of the case as elaborated by us in preceding para’s of this order , end of justice will be met in this case if the issues in these appeals are set aside and restored to the file of learned CIT(A) for fresh adjudication of these issues after complying with Rule 46A and by following ratio of judgment of Hon’ble Bombay High Court in the case of RPG Enterprises Limited [2016 (7) TMI 71 - BOMBAY HIGH COURT]. The assessee is directed to file all necessary evidences and explanations before learned CIT(A) in its defence including complete details of renovation work undertaken by it. The learned CIT(A) is directed to give proper and adequate opportunity of being heard to the assessee in accordance with principles of natural justice in accordance with law and all relevant explanations/evidence submitted by the assessee before learned CIT(A) in set aside proceedings shall be admitted by learned CIT(A) in the interest of justice and dealt with in accordance with law on merits . The appeal of the Revenue is allowed for statistical purposes.
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