TMI Blog2008 (10) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... m Mrs. Sarika Goyal, an NRI, by relying on the gift deed and affidavit of the donor which are self-serving documents, and do not prove the creditworthiness of the donor which is a sine qua non for allowing the same as gift. ( ii )The CIT(A) also erred in allowing the above gift, without appreciating the alleged donor had no such close relationship with the assessee as to make a gift of substantial amount and as such the ratio of Apex Court s decision in the case of Sumati Dayal v. CIT [1995] 214 ITR 801 squarely applied. ( iii )On facts and in the circumstance of the case, the learned CIT(A) has also erred in allowing relief of Rs. 1,00,000 out of the total addition of Rs. 1,20,000 by relying upon the copy of sale deed dated 28-12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing fact position is relevant. In the assessment proceedings, the Assessing Officer made three additions which were subject-matter of dispute before the Commissioner of Income-tax (Appeals). The first addition was of a sum of Rs. 1,20,000 found credited in the capital account of the assessee on 12-5-2000. This was explained by the assessee as cash deposited on account of sale of land at Mandi. On being asked to produce the copy of the sale deed in respect of land at Mandi, the assessee could neither furnish the same, nor any other proof of sale was furnished. Accordingly, the Assessing Officer treated sum of Rs. 1,20,000 credited in the capital account on 12-5-2000 as income of the assessee from undisclosed sources , which was added i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said sum as assessable in the hands of the assessee as income from undisclosed sources . Before the Commissioner of Income-tax (Appeals), the assessee furnished an affidavit of Ms. Sarika Goyal in support of the gift dated 23-2-2006. The assessee also submitted before the Commissioner of Income-tax (Appeals) other documents in support of the gift, namely copy of bank account of the donor showing the relevant entries, proof that the said donor visited India in the month of February, 2006 when the affidavit was signed by her, copy of her passport showing entry of arrival at Delhi in February, 2006 and also at the time when in India with the alleged gift was made. All these evidences were fresh evidences which were not produced before the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Income-tax (Appeals) has admitted and relied upon the additional evidence in order to delete the additions, which was hitherto not before the Assessing Officer during the course of assessment proceedings. The admission of fresh evidence before the Commissioner of Income-tax (Appeals) is governed by the provisions of rule 46A which reads as under: "46A. (1) The appellant shall not be entitled to produce before the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals), any evidence, whether oral or documentary, other than the evidence produced by him during the course of proceedings before the Assessing Officer, except in the following circumstances, namely : ( a )where the Assessing Officer has r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other substantial cause including the enhancement of the assessment or penalty (whether on his own motion or on the request of the Assessing Officer) under clause ( a ) of sub-section (1) of section 251 or the imposition of penalty under section 271." 8. A bare perusal of the aforesaid rule shows that the assessee is not entitled to produce before the Commissioner of Income-tax (Appeals) any evidence which was not produced by him during the course of proceedings before the Assessing Officer except under the conditions prescribed in clauses ( a ) to ( d ) of sub-rule (1) of rule 46A of the Rules. Further, sub- rule (2) of rule 46A prescribes that no evidence shall be admitted unless the Commissioner of Income-tax (Appeals) records in wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, insofar as the present case is concerned, the provisions of sub-rule (4) of rule 46A do not help in sustaining the action of the Commissioner of Income-tax (Appeals). It is neither the case of the assessee and nor does it emerge from the order of the Commissioner of Income-tax (Appeals) that the evidence in question has been directed to be produced by the appellate authority. In our considered opinion, the Commissioner of Income-tax (Appeals) has proceeded to admit and consider the additional evidence in violation of rule 46A of the Rules. Hence, the action of the Commissioner of Income-tax (Appeals) in deleting the addition in question by relying upon fresh evidence without complying with the provisions of rule 46A is unsustainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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