TMI Blog2016 (1) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... order must also be set aside. The CIT (A) shall make available copies of the documents, placed before him by the assessee, to the assessing officer and, after giving him an opportunity of being heard in this regard, pass orders afresh and in accordance with law. - Decided in favour of revenue - ITTA 119 / 2015 - - - Dated:- 14-12-2015 - RAMESH RANGANATHAN AND M.SATYANARAYANA MURTHY, JJ. FOR THE PETITOINER : PRASAD (SC FOR INCOME TAX) FOR THE RESPONDENT : RAMAKRISHNA REDDY ORDER: (per Hon ble Sri Justice Ramesh Ranganathan) Heard Sri J.V.Prasad, learned Senior Standing Counsel for the Income Tax Department, and Sri V.Ramakrishna Reddy, learned counsel for the respondent-assessee. This appeal, under Section 260-A of the Income Tax Act, 1961 (for brevity, the Act ), is preferred against the order passed by the Income Tax Appellate Tribunal (for brevity, ITAT ) in I.T.A.No.1081 of 2013 dated 21.03.2014. A best judgment assessment was passed under Section 144 of the Act by the assessing authority on 21.01.2013 disallowing deductions under Section 10-A of the Act. Aggrieved thereby, the assessee carried the matter in appeal to the CIT (A) who, in his order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus gathered; the CIT(A) was empowered to do so under Section 250(4) of the Act; the result of the enquiry, conducted by him, could cement the case made out by the assessing officer or to help the assessee against the findings of the assessing officer; the mere fact that the result of the enquiry, thus conducted, supported the case of the assessee had no bearing on the jurisdiction and powers of the CIT (A); the CIT(A) could have confronted the assessing officer with the evidence received and the material gathered; he could have allowed the assessing officer to have his say in the matter; if he had done so, no dispute would have arisen; there was, however, no requirement in law that the first appellate authority should invariably consult or confront the assessing officer every time additional evidence, that was not before the assessing officer, is obtained by the first appellate authority on its own motion; there is no requirement in law to consult/confront the assessing officer with such additional evidence; there may be cases where additional evidence is admitted by the first appellate authority on a request or application being made by the assessee; in such cases Rule 46-A (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence 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 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the assessing authority, or his representative, to be given an opportunity of being heard before the appeal is decided. The Gujarat High Court in Vali Mohamed Ahmedbhai4 rejected the view, similar to the one taken by the Tribunal, and held that the CIT (A) should not have taken into account any evidence produced under Rule 46- A(1) unless the Income-tax officer has been allowed a reasonable opportunity to examine the evidence or to cross-examine the witness whose evidence was taken on record or to produce any evidence in rebuttal of the additional evidence produced by the assessee; the CIT (A) could not have relied on the additional evidence without giving such opportunity to the Income-tax officer; even if no such rule was in existence, ends of justice and fair play demand that, when the assessee produces additional evidence in his appeal, an opportunity is given to the ITO to test the evidence or to counter the effect of the evidence by producing evidence in rebuttal or otherwise; the ITO had the right to object to the production of additional evidence; since something adverse to the ITO was sought to be done in the course of the appeal, by way of augmenting the record, the ..... 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