TMI Blog2012 (8) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... Mehar Singh, JJ. Manjeet Singh for the Appellant. Sudhir Sehgal for the Respondent. ORDER Mehar Singh, Accountant Member The present appeal filed by the Revenue and the Cross-objection filed by the assessee are directed against the order dated 14.02.2011 passed by the ld. CIT(A) u/s 250(6) of the Income-tax Act, 196l (in short 'the Act'). 2. In this appeal, the Revenue has raised the following Grounds of Appeal: "1. That the Ld. CIT(A) erred in law and on facts in admitting the additional evidence without passing in writing an order under sub-rule (2) of Rule 46A specifying that the assessee was prevented by any reasonable conditions as laid down in Rule 46A(1)(a), (b), (c) or (d) during the assessment proceedings. 2. That the Ld. CIT(A) has erred in law and facts in admitting the additional evidence furnished by the assessee before him during the appellate proceedings ignoring the facts :- ( i ) that the circumstances explained by the assessee do not fall under clauses (a), (b), (c) and (d) of Rule 46A(1) of Income Tax Rules, 1961. ( ii ) that sufficient opportunities mere allowed to the assessee to furnish the relevant documents and produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence under Rule 46A of the Income-tax Rules, 1962. The assessee has filed a certificate, issued by the Railway authorities, indicating the nature of demurrage. The assessee had filed detailed submissions before the CIT(A), which bas been reproduced in the impugned order of the CIT(A),containing date-wise proceedings, before the AO and the details filed before him. It is mentioned therein that notice u/s 271(l)(b) of the Act was issued, but later on proceedings were dropped, in view of reply dated 6.11.2008. It was further, mentioned that on 28.8.2008, the assessee appeared, but on that date, room of the ACIT was found locked arid 'show cause notice' was issued and for which, assessee replied and the proceedings u/s 271(1)(b) were dropped. It is mentioned that on 19.12.2008 i.e Friday, assessee's counsel requested for a short adjournment, to file the information, but it was declined. On 22.12.2008 i.e. Monday, the reply along-with detail was sought to be submitted by 11 AM, along-with reply dated 20.12.2008 and the same was not accepted by the AO The assessment order was passed on 22.12.2008. 6. The Id. CIT(A) has admitted the additional ground of appeal, after recording ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported in 256 ITR 50 (Guj.) is quite apt. Besides, I have also been informed that the AO while assessing the case for Asst. Year 2008-09 of the same assessee, has allowed 30% depreciation as claimed by the assessee and for which the assessment has been framed u/s 143(3) vide order, dated 8.12.2010 and thus, on the basis of consistency as per various judgments cited before me, it is hereby directed that the AO should allow the depreciation @ 30% against 15% allowed earlier and this ground of appeal is, therefore, allowed." 7. It is further mentioned that the AO was given due opportunities and he submitted remand report. Therefore, the CIT(A) has given due opportunity to the AO, within the meaning of Rule 46A. On plain reading of Rule 46A, it is clear that this Rule is introduced to place fetters on the right of the appellant, to produce before First Appellate Authority, any evidence, whether oral or documentary, other than the evidence produced by him, during the course of proceedings before the AO, except in the circumstances set out therein. It does not deal with the power of the first appellate authority, to make further enquiry. In the present case, the assessee has alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the Railways Authority to the tune of Rs. 68,770/-, but no comments have been given to the Assessing Officer of the other positive and documentary evidence as adduced before me and copy of the same was given for its comment. Then again, demurrage is not in the nature of penalty and no infraction of law has taken place and the judgment of Punjab Haryana High Court in the case of CIT v Indo Asian Suritchgear as reported in 222 ITR 772 and other judgments as cited before me vide reply dated 06.10.2009, clinch the issue in favour of the assessee and, therefore the addition of Rs. 2,10,170/- is ordered to be deleted." 10. In Ground No. 4, ld. 'DR' contended that CIT(A) erred in law and on facts in deleting the addition of Rs. 4,36,632/-made by AO on account of unexplained addition to capital account, when no evidence was produced by assessee before AO. The ld. CIT(A), on appreciation of the documentary evidence filed in the form of Paper Book at pages 15 to 16, deleted the impugned addition. The relevant findings of the ld. CIT(A) are reproduced hereunder : ( iii ). Regarding the addition in the capital account of the assessee, a copy of the capital account is available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficate from Sh. Gurdip Singh had been furnished before the AO also and which reply was not considered by the AO. Sh. Gurdip Singh is being assessed to tax and he has confirmed the advancement of loan and his PAN number is quoted and therefore, the said addition of Rs. 8 lacs deserves to be deleted. As regards the confirmations from Sh. Baldev Raj and Sh. B.C. Tiwari are concerned, though, the confirmations have been filed, but no PAN numbers or GIR Numbers or sources of their amount having been advanced to the assessee have been furnished and mere advancement of amount by way of account payee cheques does not specify the requirement of section 68 and, accordingly, the addition of Rs. 5 lacs each in the name of Sh. Baldev Raj and Sh. B.C. Tiwari totalling to Rs. 10 lacs is hereby confirmed." 13. We have carefully perused the rival submissions, facts of the case and the relevant record and find that the CIT(A) has granted partial relief to the assessee and the deletion has been made on the foundation of requisite material on record in respect of Shri Gurdip Singh. Therefore, the findings of the CIT(A) are upheld and ground of appeal of the revenue is dismissed. 14. In CO. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the date when the amount was advanced to Sh. Hakim Singh and for full one year in the name of Smt. Ravinder Kaur. The Assessee has worked put the disallowance of Rs. 2860/- in the name of Sh. Hakam Singh and Rs. 2700/- in the name of Smt. Ravinder Kaur and the AO is directed to rectify the same and disallow the interest as per the same rate of interest which is being charged by the bank from the assessee. ( vi ). With regard to the claim of various expenses, the assessee has filed before me the detail of all such expenses along with other documentary evidences i.e. wages register, copies of the bills and vouchers, which were forwarded to the AO including the detail of freight paid and the detail in respect of other heads as pointed out by the AO. The AO in his assessment order has not specifically doubted the genuineness of the expenses or made any disallowance in respect of said expenditure under each head as per Para 5 of Page 5 of the Assessment Order, but has only stated that no separate addition out of these major expenses is being made, since the same is covered by the addition in respect of ingenuine credits. ( vii ). After going through the submissions and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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