TMI Blog2012 (10) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... through the AO . 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 and nor even ascertained the nature of these liabilities, thus the findings of the CIT(A) are set aside and restore the issue back to his file, with the directions to follow the mandate in terms of Rule 46A of the IT Rules, 1962 - in favour of assessee for statistical purposes. - ITA Nos. 4433 & 4434/Del/2012 - - - Dated:- 19-10-2012 - SHRI RAJPAL YADAV, SHRI A.N. PAHUJA, JJ. Revenue by Ms. Sumana Sen, DR O R D E R A.N.Pahuja: - These two appeals filed on 17.8.2012 by the assessee against two separate orders dated 01.05.2012 of the ld. CIT(A)-Meerut, raise the following grounds:- I.T.A. No.4433/Del./2012[AY 2003-04] That the Assessing Officer as well as learned CIT appeal Meerut have erred the addition of Rs.1,19,488/- as creditor in spite of the confirmation from the creditors. I.T.A. No.4434/Del./2012[AY 2004-05 That the Assessing Officer as well as the learned CIT(A), Meerut have erred the addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .3 Decision and reasons therefore: I have considered the facts of the case. I find that from the assessment proceedings till the remand proceedings the AR has not been able to convince the Assessing Officer about the genuineness of the sundry creditor, namely M/s Gupta Traders. A copy of confirmation filed in the course of appellate proceedings does not have the PIN code of M/s Gupta Traders. The alleged creditor has also not mentioned his PAN etc. The AR has taken no further initiative to furnish a copy of accounts of the creditor showing the details of transaction or to produce the creditor either before the Assessing Officer or before me. In view of the totality of these facts, I infer that the creditor was rightly held as not being genuine by the Assessing Officer. The addition made, therefore, is upheld. 4.1 Similarly in the AY 2004-05, the ld. CIT(A) upheld the findings of the AO, in the following terms:- 5.2 During the appellate proceedings the AR filed a confirmation along with an application under Rule 46A. The same was forwarded to the Assessing Officer. The Assessing Officer in his remand report has stated that a notice dated 8.9.2010 under section 133 (6) wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) discarded these confirmations and upheld the addition in these two assessment years, without examining either the nature of these liabilities or following the procedure laid down in rule 46A of the IT Rules,1962 in respect of applications filed by the assessee for admission of additional evidence in these two assessment years. It is not evident from the impugned orders as to why the assessee did not submit relevant confirmations before the AO and whether the assessee was given sufficient opportunity by the AO. Even the nature of these liabilities is not evident from the impugned orders nor the relevant provisions of law under which these amounts could be added ,have been referred to. The ld. CIT(A) did not care to record any reasons before admitting additional evidence nor appears to have ascertained the genuineness of the said evidence through independent enquiries or through the AO . Now what are the reasons given in the application for admission of additional evidence, is not evident from the impugned orders. In nutshell, the ld. CIT(A) upheld the addition without following the procedure laid down under Rule 46A of the IT Rules,1962. The ld. CIT(A) arrived at his conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the imposition of penalty under section 271.." 6.1 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. Biri Works' case [2005] 275 ITR 496 (All), by making an elaborate discussion on rule 46A of the Rules in paragraph 10 at page 500 and 501, it was held that under rule 46A the authority is not permitted to act whimsically while exercising the jurisdiction under it .In the case under consideration, the assessee placed before the ld. CIT(A), certain additional evidence and admittedly, the said documents in the form of confirmations were not submitted before the AO. The powers of the CIT(A) in terms of rule 46A to admit fresh evidence, entail an element of discretion which is required to be exercised in a judicious manner. The powers of the CIT(A) to admit additional evidence are not only in situations where the evidence could not be produced before lower authorities owing to lack of adequate opportunity but also in situations where the fresh evidence would enable the CIT(A) to dispose of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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