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2020 (2) TMI 511 - AT - Income TaxCIT(A) allowing additional evidence without intimating to the AO - violation of rule 46A - HELD THAT:- In the present case, we are dealing with a situation as envisaged under rule 46A(1). It is evident from the facts on record, learned Commissioner (Appeals) on his own has neither made any enquiry nor has called for any evidences from the assessee. It is the assessee who, on his own, has furnished the additional evidences to explain the information contained in CIB/AIR report. Therefore, the procedure laid down in sub–rule (2) and (3) or rule 46A, has to be followed. In the facts of the present case, undisputedly, the procedure laid down in sub–rule (2) and (3) of rule 46A, have not been followed. While granting relief to the assessee by relying upon the additional evidences, learned Commissioner (Appeals) has violated the conditions of rule 46A, as discussed above. As regards the decision of the Hon'ble Jurisdictional High Court in Smt. Prabhavati S. Shah [1998 (2) TMI 107 - BOMBAY HIGH COURT] there cannot be two opinions with regard to the ratio laid down in the aforesaid decision. However, the Hon'ble Jurisdictional High Court was dealing with a case where the first appellate authority refused to admit the additional evidences filed by the assessee. In that context, the Hon'ble Jurisdictional High Court explaining the power of the first appellate authority under section 250(4) and (5) of the Act, held that the additional evidences filed by the assessee should not be rejected as the power of the learned Commissioner (Appeals) in making enquiry and calling for evidences is much wider and is not restricted by rule 46A - we are inclined to set aside the impugned order of learned Commissioner (Appeals) and restore the issue back to his file for fresh adjudication after necessary compliance with the provisions of rule 46A. Grounds are allowed. Revenue’s appeal is allowed for statistical purposes.
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