9911796707
TMI Blog2012 (12) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... ue's appeal raises as many as six (6) grounds; the seventh being only by way of a prayer for modification or substitution or fresh addition to the grounds raised per the Memo of Appeal. The same read as under:- "1. Whether on the facts and in the circumstances of the case, Ld. CIT(A) is justified in deleting the addition of Rs. 74,41,82,254/- made on account of unexplained creditors and advances reflected in the books of account of the assessee despite the failure on the part of the assessee to furnish necessary details and documentary evidences before the assessing officer. 2. Whether on the facts and in the circumstances of the case, Ld. CIT(A) is justified in deleting the addition of Rs. 1,13,15,560/- being the unreconciled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditworthiness of the share applicants and genuineness of the transactions before the assessing officer. 7. That it is prayed that additional/fresh grounds of appeal and/or modification/substitution in the above grounds of appeal may be allowed before or at the time of hearing." 3.1 At the very outset, the ld. AR, the assessee's counsel, submitted that he wishes to raise a preliminary objection, filing a note titled 'Facts in brief and the Respondent's submissions' dated 27-08-2012. It would be apparent, he urged, that the Revenue's grounds do not challenge the impugned order on its merits but only on the basis that there had been a failure on the part of the assessee to furnish the necessary details and documentary evidence/s befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even date, which stands annexed to his written submissions dated 27-08-2012. 3.2 The ld. DR, on the other hand, would, in response to the said preliminary objection by the ld. AR, submit that the ld. CIT(A) had failed to observe the procedure as laid down under Rule 46A of the Income Tax Rules, 1962 ('the Rules' hereinafter), and which are mandatory, so that it was incumbent on him to follow the procedure as prescribed thereby. The said rule contemplates three (3) separate steps. Firstly, there has to be, in terms of rule 46A(2), a recording of reason/s for the admission of the additional evidence/s, which could only be in and under any of the circumstances as enumerated under rule 46A(1) (vide clauses (a) to (d) thereof). The matter has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the material on record. 4.1 It would be necessary for us to deal with the assessee's preliminary objection, which in fact touches the core of the present appeal by the Revenue, first. Its prime grievance, as discerned - on the basis of the material on record and the arguments advanced before us during hearing, is the non-examination by the AO of the material adduced before the ld. CIT(A) for the first time. However, the question that arises is: Could it really lie in the mouth of the Revenue to so contend when it has failed to furnish a remand report, called for by the first appellate authority as early as on 01-04-2011, despite reminders, even by 10-01-2012; the assessee having furnished the said material on the first day of the hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report from the AO, or record reasons for admission of the additional evidence/s u/r. 46A and remit the matter back to the file of the assessing authority for his verification and examination. When additional evidence/s is sought to be adduced before him by the assessee, he is bound to adopt the procedure as laid down u/r. 46A, and this is what is implied and meant when it is, as in the foregoing paragraph (# 4.1), stated that the said rule is mandatory in nature. It is only under circumstances other than where the additional evidence/s adduced by the assessee is admitted and sought to be relied upon by him, that the mandate of r. 46A shall have no application, so that where it is found by him, for instance, that there has been an omission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntering around non-observance of the procedure as prescribed u/r. 46A, as was indeed done by the Revenue through the ld. DR. Also, the assessee's claim that the Revenue does not question the order by the ld. CIT(A) on merits is also without merit. Where is the question, one may ask, of a challenge on merits when there has been no examination of the relevant material by the AO and, consequently, no expression of opinion by him in the matter? For all we know, the AO, after considering the said materials, may not be inclined to follow his earlier view! That is, a challenge on merits would be speculative or at best premature under such circumstances, and shall have to necessarily await the findings on the said examination and consequent adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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