TMI Blog2015 (10) TMI 2249X X X X Extracts X X X X X X X X Extracts X X X X ..... t by the assessee before the CIT(A) were that he was running a pathology lab and was also looking after the land of his family. The case of the assessee before the CIT(A) that Axis bank was used for deposits and withdrawals of amount in respect of agricultural activity of the family. A summary of receipts and payments in the said bank account have been filed before the CIT(A), which have been accepted in toto. We find that the CIT(A) has failed to comply with the provisions of Rule 46A of the Rules i.e. before admitting any additional evidence, the conditions prescribed in the said Rule have to be looked into and in case, the assessee satisfy the same then, such additional evidence can be admitted. Rule 46A of the Rules further provides that on such admission of the evidence, the same should be confronted to the Assessing Officer for verification. The CIT(A) on its own can make certain enquiries, but then the enquiries should be complete and the explanation of the assessee should not be accepted on its face. On perusal of the order of CIT(A) reflects that no proper enquiry has been made by the CIT(A) and in the absence of the same and in view of violation of Rule 46A of the Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014 has raised the following grounds of objections:- 1) On the facts and in the circumstances of the case and in law, the lower authorities have erred in treating the agricultural income belonging to HUF of the appellant, as income of the appellant by disregarding the appellants specific contention in this regard. 5. The issue raised in the present appeal is against the deletion of addition of ₹ 17,04,000/-. 6. The preliminary issue raised by the Revenue in this regard is whether the CIT(A) was justified on relying upon the additional evidence produced by the assessee at the time of appellate proceedings, which was in violation of Rule 46A of Income Tax Rules , 1962 (Rules) since the same was not forwarded to the Assessing Officer for verification. 7. Briefly, in the facts of the present case, the assessee had furnished the return of income declaring total income of ₹ 1,81,997/-. The Assessing Officer had issued notice under section 143(2) of the Act on 17.08.2010 and thereafter, various notices under section 142(1) and 143(2) of the Act from time to time. The Assessing Officer also issued questionnaire to the assessee. However, the assessee failed to ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the peak of the cash deposit and cash withdrawals in the savings account was ₹ 5,78,100/-. The CIT(A) further notes the agricultural land owned by the family of the assessee and after giving credit of ₹ 3,93,750/-, made addition of ₹ 1,84,350/- as unexplained deposit in Axis bank. 9. The Revenue is in appeal against the said order of CIT(A). 10. The learned Departmental Representative for the Revenue before us pointed out that the assessee had failed to appear before the Assessing Officer, despite several opportunities having been given to the assessee. It was further pointed out by him that the CIT(A) has not considered the evidence of cash generation in the hands of assessee and has merely accepted the explanation of the assessee, without verifying its veracity. The Revenue is also aggrieved by the order of CIT(A) in not allowing an opportunity of verification to the Assessing Officer as envisaged under Rule 46A of the Rules in relation to admission of additional evidence. The learned Departmental Representative for the Revenue stressed that no such explanation was filed before the Assessing Officer by the assessee and the enquiries, if any, made by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (a) to examine the evidence or document or to crossexamine 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. 13. Under the provisions of Rule 46A, it is provided that the appellant shall not be entitled to produce any evidence, whether oral or documentary before the CIT(Appeals) except the evidence produced by him during the assessment proceedings. However, certain exceptions are provided under sub-rule 1 to Rule 46A of the IT Rules, which are as under : (a) where the Assessing Officer has refused to admit evidence which ought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be confronted to the AO, who inturn would examine the evidence or documents or cross-examine the witness produced by the appellant. Further, the said sub-rule also provides that the AO can produce any evidence or documents or any witness in rebuttal of the additional evidence produced by the appellant. The power of the CIT(Appeals) to call upon the appellant to produce any document or examine any witness in order to dispose of the appeal or any other substantial cause including enhancement of the assessment or penalty or imposition of penalty u/s 271, is not impaired. 16. In the facts of the present case before us, there was total non-compliance of the assessee before the Assessing Officer. The assessee failed to appear on any of the dates of hearing, except on one date to seek adjournment of the hearing. The Assessing Officer had issued show cause notice to the assessee, which was not replied to by the assessee during the course of assessment proceedings. The Assessing Officer had AIR information of cash deposit of ₹ 17,04,000/- in savings account of assessee with Axis Bank. In the absence of any explanation received from the assessee, the said sum was added as incom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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