TMI Blog2000 (2) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... he total turnover of the firm exceeded more than Rs. 40 lakhs. Hence it was liable to audit under s. 44AB of IT Act. The original order was passed by the AO under s. 143(3) of the Act after due verification of the books of accounts. Thereafter the Accountant General, Rajkot, pointed out that there was cash payment to the tune of Rs. 67,695. The AO referred this matter to the CIT, Rajkot, and the learned CIT, Rajkot, ordered the AO to reopen the case for making fresh assessment vide order passed under s. 263 of the Act. The AO made the reassessment under the provisions of s. 144 of the Act on the basis that there was no co-operation from the assessee. The learned CIT referred the matter back to the AO for verification of cash payment of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to appear before the ITO, Ward-3, Jamnagar, as the case is already settled under s. 143(3) of IT Act, 1961." 4. The learned counsel, also pointed out that the transactions in question were not those of cash payment is not disputed and there is clearly a case of negligence by the chartered accountant and the tax practitioner. Therefore, according to him, the learned CIT(A) should have admitted this new evidence for deciding the case on merit. It was also argued by the learned counsel that the appeal is a continuation of assessment and it is undisputed that the CIT(A) is empowered to admit additional evidence at the time of hearing. The AAC or CIT(A) is not only empowered but is also obliged to allow further enquiry so as to find out true s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed under s. 144 of the Act by the AO and the learned CIT(A) has confirmed the finding of the AO on its merits. He further contended that the learned CIT(A) has not admitted new evidence which was not produced before the AO. 6. We have heard both the parties. According to the learned counsel, there was non-attendance before the AO, in the course of reassessment proceedings because of the gross negligence on the part of the CA. To support his contention, be also filed affidavit of one Sri Mahendra B. Bhatt who was writing the accounts of the assessee-firm. In his affidavit, Shri Mahendra B. Bhatt has mentioned that the CA prevented him for non-attending the assessment proceedings before the AO. The learned counsel the invited our atten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : (1998) 231 ITR 1 (Bom), the Hon'ble High Court has held as follows: "It is clear from sub-ss. (4) and (5) of s. 250 of the IT Act, 1991, that the powers of the AAC are much wider than the powers of an ordinary Court of appeal. The scope of his powers is co-terminous with that of the ITO. The power conferred on the AAC under sub-s. (4) of s. 250 being a quasi-judicial power, it is incumbent on him to exercise the same, if the facts and circumstances justify. If the AAC fails to exercise his discretion judicially, and arbitrarily refuses to make enquiry in a case where the facts and circumstances so demand, his action would be open for correction by a higher authority. The purpose of r. 46A of the Rules is to ensure that evidence is prima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and that the same could not have been raised earlier for good reasons. The satisfaction of the AAC depends upon the facts and circumstances of each case and no rigid principles of any hard and fast rule can be laid down for this purpose." 7. In the present case, the original assessment was completed by accepting the book results of the assessee. The case was reopened under the provisions of s. 263 of the Act by the CIT. While framing the fresh assessment, the assessee could not appear before the AO because he was prevented by chartered accountant on the basis that the assessment has already been completed by the AO and there is no need of appeal before the AO again. Thus, assessee was misguided by the CA and, therefore, he could not pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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