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TMI Blog2015 (8) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... scertained liability. 3. That in the facts and the circumstances of the case, the Ld.CIT(A) erred in deleting the addition of legal & professional fees and freight outward of Rs. 6,55,295/- & Rs. 65,79,170/respectiv ely being the expenses related to prior period. 4. That in the facts and the circumstances of the case, the Ld.CIT(A) erred in deleting the addition of Rs. 16,85,845/- under the head general charges being the expenses related to prior period. 5. That in the facts and the circumstances of the case, Ld. CIT(A) erred in deleting the addition of Rs. 2,81,370/- under the head Sundry Balance Written Off by accepting fresh evidence at the appellate stage by violating the provision of Rule 46A of the I.T. Rul es, 1962. 6. That in the facts and the circumstances of the case Ld. CIT(A) erred in law in deleting the addition of Rs. 21,607/- for delayed deposit of employees' contribution of ESI and PF made as per provision of section is 36(1)(va) read with Sec.2(24)(x) of the Act. 7. That leave may be granted to add, alter or modify any ground as may arise in the course of appellate proceedings. 2. Brief facts of the case are that the assesese, a Private Limited Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r from the ld. CIT(Appeals) was duly received in the Office of DCIT, Ci rcle-3 and there is specific noting in the order- sheet on 02.12.2009 which reads as under:- 02.12.2009 : "Shri D.S. Saharia, FCA and Shri M.A. Asgar, LL.b appeared for the appellant. Appeal is partly heard. Adjourned to 16.12.2009". Sd/- 02.12.09 Pl. Call for a Remand Report within a fortnight". Ld. counsel for the assessee pointed out that the ld. CIT(Appeals) passed the order on 20.08.2010 after waiting for almost 8-9 months for the remand report. 6. Ld. D.R. in his rejoinder submitted that there is no reference of remand report being called for by the ld. CIT(Appeals) in his order. 6.1. Ld. D.R. submitted that it is quite possible that this letter might not have reached the Assessing Officer and, therefore, the matter should be restored to the file of CIT(Appeals) for providing opportunity to Assessing Officer. 7. We have considered the submissions of both the parties and have perused the records of the case. From the submissions made by both the part ies, it is evident that the ld. CIT(Appeal s) had called for a remand report on 02.12.2009, but the remand report was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record to show that he, while disposing of the appeal, had directed further enquiry and called for the confirmation letters from the assessee even in respect of receipt of monies from customers by way of cheques. Rule 46A is a provision in the Income Tax Rules, 1962 which is invoked, on the other hand, by the assessee who is in an appeal before the CIT (A). Once the assessee invokes Rule 46A and prays for admission of additional evidence before the CIT (A), then the procedure prescribed in the said rule has to be scrupulously followed. The fact that sub-Section (4) of Section 250 confers powers on the CIT (A) to conduct an enquiry as he thinks fit, while disposing of the appeal, cannot be relied upon to contend that the procedural requirements of Rule 46A need not be complied with. If such a plea of the assessee is accepted, it would reduce Rule 46A to a dead letter because it would then be open to every assessee to furnish additional evidence before the CIT (A) and thereafter contend that the evidence should be accepted and taken on record by the CIT (A) by virtue of his powers of enquiry under sub-Section (4) of Section 250. This would mean in turn that the requirement of recordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the [Assessing Officer] ; or (c) where the appellant was prevented by sufficient cause from producing before the [Assessing Officer] any evidence which is relevant to any ground of appeal ; or (d) where the [Assessing Officer] has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal. (2) No evidence shall be admitted under sub-rule (1) unless the [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)] records in writing the reasons for its admission. (3) The [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)] shall not take into account any evidence produced under sub-rule (1) unless the [Assessing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received by the assessee from the customers who paid the amounts by cheques and asked for comments. Thus, the end result has been that additional evidence was admitted and accepted as genuine without the Assessing Officer furnishing his comments and without verification. Since this is an indispensable requirement, we are of the view that the Tribunal ought to have restored the matter to the CIT (A) with the direction to him to comply with sub-rule (3) of Rule 46A. In our opinion and with respect, the error committed by the Tribunal is that it proceeded to mix up the powers of the CIT (A) under sub-section (4) of Section 250 with the powers vested in him under Rule 46A. The Tribunal seems to have overlooked sub-rule(4) of Rule 46A which itself takes note of the distinction between the powers conferred by the CIT (A) under the statute while disposing of the assessee's appeal and the powers conferred upon him under Rule 46A. The Tribunal erred in its interpretation of the provisions of Rule 46A vis-à-vis Section 250(4). Its view that since in any case the CIT (A), by virtue of his conterminous powers over the assessment order, was empowered to call for any document or make any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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