9911796707
TMI Blog2011 (8) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... 11,98,100. The assessee has further pleaded that Learned CIT(Appeals) has erred in not admitting additional evidence demonstrating the assessee as a petty civil contractor. According to the assessee, Learned First Appellate Authority sought to have admitted the additional evidence and ought to have assessed the income of the assessee at 8% under sec.44AD on gross contract receipt of Rs. 17,99,773 which would give an income of Rs. 1,38,400 only instead of assessing the income at Rs. 11,98,100. 2. The brief facts of the case are that the assessee has filed his return of income on 26.7.2006 declaring an income of Rs. 1,09,560. According to the Assessing Officer, a notice under sec. 143(2) was issued and served duly within statutory period wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned First Appellate Authority has called for remand reports but rejected the application of the assessee on the ground that documents submitted by the assessee are not worth admitting. On an analysis of bank accounts, Learned CIT(Appeals) is of the opinion that there are withdrawals from the banks along with the amounts deposited by the assessee. He formed an opinion that amounts withdrawn from the bank account must have been used for making deposits. In a way, the peak amount available on the credit side of the bank account has been considered as unexplained amounts of the assessee. An addition of Rs. 11,98,100 has been confirmed by the Learned CIT(Appeals). 4. The learned counsel for the assessee submitted that Assessing Officer did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refused to admit evidence which ought to have been admitted; or (b) where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the Assessing Officer; or (c) where the appellant was prevented by sufficient cause from producing before the Assessing Officer any evidence which is relevant to any ground of appeal; or (d) where the Assessing Officer has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal. (2) No evidence shall be admitted under sub-rule(1) unless the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) records in writing the reasons f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a specific evidence by the Assessing Officer but by virtue of sufficient reasons he could not produce such evidence or assessee was to produced any evidence relevant to the grounds of appeal but he could not produce it before the Assessing Officer or Assessing Officer has passed the assessment order without giving sufficient opportunity to the assessee. If any one conditions is available then assessee would be permitted to adduce additional evidence. The next step suggested in the rule is that Learned CIT(Appeals) has to record reasons for permitting an assessee to adduce the additional evidence. After this exercise, it has been provided in sub-rule (3) that Learned First Appellate Authority shall not take into account such evidence unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence is to be decided at the first stage under sub-rule(1). For that he need not to call for a remand report on the merit of the evidence. He can simply hear the Assessing Officer as is provided in sec. 250(1) of the Act. In other words, Learned CIT(Appeals) supposed to give just an opportunity of hearing to the A.O. before admission of evidence. Once, it is admitted by recording reasons as provided in sub-rule(2) then next stage would come as enumerated in sub-rule(3), where Learned CIT(Appeals) would call upon a remand report of the Assessing Officer on the merit of the evidence and also give an opportunity to the Assessing Officer to lead evidence in rebuttal of the evidence submitted by the assessee. 7. We find from the analysis of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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