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2014 (1) TMI 755 - ITAT DELHIDisallowance u/s 14A - Held that:- Following Maxopp Investment Ltd. vs CIT [2011 (11) TMI 267 - Delhi High Court] - Rule 8D is applicable w.e.f. A.Y. 2008-09 - The issue has been restored to AO for fresh adjudication. Undeclared commission income - held that:- From the Form No.16 the salary income was Rs.1,12,60,600 which included commission income of Rs.88,60,600. The TDS was Rs.37,50,990 - The gross salary income offered for taxation was Rs.1,13,20,571 - The commission is properly reflected in the return - The issue has been restored to the AO with a direction to verify the reconciliation statement and other documents - Decided in favour of assessee. Whether CIT(A) have the power to set aside the issue to the AO and entertain fresh evidence - - Held that:- The CIT(A) has the power to admit fresh evidence by specific order under Rule 46A of the Income Tax Rules, 1962 - The power so exercised has been on the plea advanced on behalf of the assessee that no queries in the course of the assessment proceedings qua the issue were raised by the AO - As such the action of the CIT(A) in admitting fresh evidence cannot be faulted with – The rules further require that opportunity to rebut the fresh evidences by evidence, document etc by way of a remand report should have been provided to the AO which admittedly has not been done by the CIT(A) who has instead restored the issue to the AO which he was not empowered to do so as section 251(1)(a) does not empower the CIT(A) to restore the issue to the AO as he can only confirm, reduce, enhance or annul the assessment - In the circumstances holding that the fresh evidence admitted was necessary and crucial for determining the issue as the AO has not proceeded on a sound footing by straightaway making the addition on the ground that Form No-16 was not available which he could have easily called for in the course of the assessment proceedings – Grounds of the Revenue are allowed whereas the ground of assessee has been restored for fresh adjudication.
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