TMI Blog2012 (10) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... SHRI I.C. SUDHIR, SHRI A.N. PAHUJA, JJ. Assessee by Shri P.N. Mehta, AR Revenue by Ms. Y. Kakkar, DR O R D E R A.N. Pahuja:- This appeal filed on 02.07.2012 by the assessee against an order dated 30th April, 2012 of the ld. CIT(A)-XXVIII, New Delhi raises the following grounds:- 1. On the facts and circumstances of the case the CIT(A) is wrong in confirming the addition of Rs.Rs.2,50,000/- made by the Assessing Officer on account of jewellery. 2. That the CIT(A) has erred in confirming the addition on the grounds that the jewellery was not shown in the statement of affairs filed for 2006-07 assessment. 3. That the source of investment in jewellery was proved and as such CIT(A) ought to have deleted the addition made by the Assessing Officer. 4. The addition made is against the law and facts of the case. 2. Facts, in brief, as per relevant orders are that return declaring income of Rs.Rs.53,498/- filed on 15.12.2008 by the assessee, a chartered accountant having income from business besides income from other sources, after being processed u/s 143(1) of the Income-tax Act, 1961 (hereinafter referred to as the Act ), was taken up for scrutiny with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the financial year 2006-07 . In support of the claim, the assessee has not furnished any evidence, bills for purchase of the jewellery either by himself or by his in-laws. Quantitative details or value wise details of the jewellery items were also not filed. Identity and credit worthiness of the donors have also not been explained or provided by the assessee. Further, the confirmation states that the jewellery was purchased or marriage was held in Feb. 2007. Therefore the jewellery should have been reflected in the statement of affairs in the financial year 2006-07 but the statement of affairs for the period ending 31.03.2007 shows no jewellery. The assessee's explanation regarding source of addition to jewellery during the year remained unexplained. Hence, the amount of Rs.250000/- was treated as unexplained investments. In the Remand Report dated 21.03.2012 the Assessing Officer has stated that additional evidences filed by the assessee is strongly objected to. 1. As evident from order sheet entry dated 31.08.2010 the assessee was requested to explain sources of addition/investment of Rs..2,50,000/-. A final show cause in this regard was also issued on 29/09/2010 asking the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue wise details of the jewellery items with the previous submission dated 6.3.2012. Beside above the only other ground that the Assessing officer used to make addition was that the confirmation of assessee states that the jewellery was purchased or marriage was held in Feb 2007. Therefore jewellery should have been reflected in the statement of affairs in the financial year 2006-07 but the statement of affairs for the period ending 31.03.2007 shows no jewellery. Hence the assessee's explanation regarding source of addition of jewellery during the year remained unexplained. Though the Assessing Officer has objected to admission of additional evidence, I still admit the same and proceed to adjudicate the issue in dispute on merits. It is pertinent to pin point the fact that the said jewellery did not reflect in the statement of affair for both the financial years 2006-07 and 2007-08 which was filed during the course of assessment proceedings. It clearly indicates that full and true picture of the assessee s assets and liabilities were not disclosed to the Assessing Officer during the course of assessment proceedings. In view of the facts and circumstances of the case, I am i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional evidence without recording any reasons in her order, in terms of rule 46A(2) of the IT Rules,1962 nor verified even the genuineness of the said additional evidence. Indisputably, the statement of affairs as on 31.3.2007 did not include the value of jewellery worth Rs.2,50,000/-.As is apparent from a mere glance at the impugned order, the ld. CIT(A) admitted additional evidence submitted by the assessee in his application under rule 46A of the IT Rules,1962,without following the procedure prescribed therein and without recording any reasons. The ld. CIT(A) did not even identify the relevant clause of rule 46A(1) of the IT Rules,1962 under which the case of the assessee fell nor the ld. CIT(A) called for any report from the AO on the genuineness of aforesaid documents after admitting the said additional evidence. The ld. CIT(A) has not even identified the circumstances under which the assessee was prevented by any sufficient cause in submitting the aforesaid documents before the AO. The genuineness of the said expenditure nowhere seems to have been examined by the ld. CIT(A) nor allowed any opportunity to the AO to examine the genuineness of bills submitted by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) or, as the case may be, the Commissioner (Appeals) shall not take into account any evidence produced under sub-rule (1) unless the Income-tax Officer has been allowed a reasonable opportunity (a) to examine the evidence or document or to cross-examine the witness produced by the appellant, or (b) to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the appellant (4) Nothing contained in this rule shall affect the power of the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) to direct the production of any document, or the examination of any witness, to enable him to dispose of the appeal, or for any 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.." 5.1 It is evident from the aforesaid provisions that the ld. CIT(A) can take into account any evidence produced under sub-r. (1)(b) (c) of Rule 46A of the IT Rules, 1962 if the assessee was prevented by sufficient cause . In Haji Lal Mohd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A interdicts the CIT (A) from taking into account any evidence produced for the first time before him unless the AO has had a reasonable opportunity of examining the evidence and rebut the same. In the instant case, there is nothing in the impugned order of the ld. CIT (A) to show that after the objections were raised by the AO in his remand report against admission of additional evidence, the ld. CIT(A) asked the AO to examine the genuineness of the additional evidence and as already stated, the ld. CIT(A) did not record any reasons before admitting the additional evidence. Thus, the end result has been that additional evidence was admitted and accepted as genuine without the AO furnishing his comments and without verification nor the ld. CIT(A) recorded her findings on the said additional evidence. Since in the case under consideration, the ld. CIT(A) did not follow the procedure laid down in Rule 46A of the IT Rules,1962 nor even recorded any findings as to whether or not the assessee was prevented by sufficient cause from producing the said evidence/documents before the AO, we ,therefore, in the interest of justice and fair play, vacate the findings of the ld. CIT(A) and restor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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