9911796707
TMI Blog2012 (6) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) has erred in deleting addition of Rs. 5,00,00,000/-made u/s 68 in respect of transactions between the assessee and M/s ASA Agencies (P) Ltd. by not deciding entirely on merits the contentions of the AO in the assessment order and by ignoring that the identity of that company was not established either during the assessment proceedings or during the appellate proceedings. 3. On the facts and circumstances of the case, the ld. CIT(A) has erred in deleting disallowance of Rs. 1,00,00,000/- made on account of receipts by the assessee from M/s Bilt Paper Holding Ltd. by not deciding entirely on merits the contentions of the AO in the assessment order and by ignoring that the creditworthiness of the said company was not established either during the assessment proceedings or during the appellate proceedings. 4. On the facts and circumstances of the case, the ld. CIT(A) has erred in deleting addition of Rs. 84,45,205/-made on account of wrong claim by the assessee that the same was exempt dividend income and not taxable income as held by the AO, by not deciding entirely on merits the contentions of the AO discussed in detail in the assessment order." 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the assessee's submissions hold no ground and the assessee's appeal needs to be rejected." 5. A careful perusal of rejoinder filed by the assessee, which is available on page 113D and 113E of the Paper Book, shows the reasons which prevented him from furnishing the relevant evidence at the time of hearing before the AO:- "5. The chronology of the events reflect as under: 23.12.2009: The assessee appeared before the ld. Assessing Authority and filed comprehensive details. 24.12.2009: Fresh details are sought from the assessee. 25.12.2009: X'mas Holiday 26.12.2009: Saturday 27.12.2009: Sunday 29.12.2009: The assessee submitted remaining details. No further opportunity afforded to the assessee to submit clarifications. 6. Keeping in view the aforesaid facts and circumstances of the case, the assessee hereby submits that the appellant is covered by exceptions provided in Rule 46A and prays for disposal of its appeal on merits after considering the documents filed before this Hon. Court." 6. The representative of the assessee appearing before us, forcefully alleged that the assessee was not given the opportunity to be heard and to submit relevant documents by the AO bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is that the appellate authority shall not take into account any evidence produced under sub-rule (1) unless the AO has been allowed a reasonable opportunity to examine the evidence or document or to cross-examine witnesses produced by the assessee or to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the assessee. 10. Section 250(4) of the Act reads as under:- "Section 250(4) The Commissioner (Appeals) may, before disposing of any appeal, make such further inquiry as he thinks fit, or may direct the Assessing Officer to make further inquiry and report the result of the same to the Commissioner (Appeals)." The above provision is of enabling nature which provides an option to the ld. CIT(A) that if he thinks fit, he may direct the AO or he may himself make further enquiry before disposal of appeal. 11. In the case of Keshav Mills Co. Ltd. v. CIT [1965] 56 ITR 365, the Hon'ble Supreme Court from the bench of seven Hon'ble Judges observed that the proceedings taken for recovery of tax under the provisions of the Act are naturally intended to be over without unnecessary delay and so it is naturally the duty of the parties, both th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) without complying with the provisions of Rule 46A(3). 15. In para 7 of the impugned order, the observation of ld. CIT(A) is in accordance with clauses (b) and (c) of sub-rule (1) of Rule 46A under which the First Appellate Authority is required to record reasons for admitting the additional evidence. Therefore, in the facts and circumstances of the present case, we hold that the ld. CIT(A) complied with the requirements of sub-rule (1) and (2) of Rule 46A. 16. This is to state further that sub-rule (3) of Rule 46A interdicts the ld. CIT(A) from taking into account any evidence produced by the assessee for the first time before him unless the AO has had a reasonable opportunity of examining the evidence and rebut the same and this sub-rule (3) has to be complied by him. At this stage, on a careful perusal of so-called remand report of the AO dated 8.2.2010, we observe that the AO only objected the admissibility of additional evidence but he resisted himself by offering comments after examination of additional evidence. 17. We also observe that there is nothing in the order of ld. CIT(A) to show that the AO was confronted with the additional evidence and asked for comment as p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
