TMI Blog2017 (4) TMI 1187X X X X Extracts X X X X X X X X Extracts X X X X ..... llected except by authority of law. Rule 46A of 1962 Act cannot be used as sword to stifle bona-fide tax-payers rather it is a shield in the aid of bona-fide tax-payers as well Revenue to advance the cause of justice and to achieve mandate of 1961 Act. Keeping in view the factual matrix of the case as it emerges from the records and to advance justice , we are of the considered view that, in the interest of substantial justice and fair play, this matter needs to be set aside and restored to the file of the ld. CIT(A) with a direction to admit all the additional evidences - I .T.A. No.3164/Mum/2014 - - - Dated:- 26-4-2017 - SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER For The Assessee : Shri Bhadresh Doshi For The Revenue : Shri Sumen Kumar, D.R. ORDER PER RAMIT KOCHAR, Accountant Member This appeal, filed by the assessee, being ITA No. 3164/Mum/2014, is directed against the appellate order dated 13th February, 2014 passed by learned Commissioner of Income Tax (Appeals)- 22, Mumbai (hereinafter called the CIT(A) ), for the assessment year 2008-09, the appellate proceedings before the learned CIT(A) arising from the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnish the details called for by the AO. Even in the letter dated 28.1.2011 no such submissions have been made. In view of this, I am of the opinion that the assessee is not having any reasonable cause for giving one more opportunity and hence the findings given in the assessment order are upheld Even on merit, the assessee has not given any detailed submissions with regard to the additions made. Hence, I have no reason to deviate with the findings given by the AO in the assessment order. It nowhere states the points for determination, decision thereon or reasons in support thereof as provided u/s 250(6) of the Act. 4. Although nobody has turned up on assessee's behalf, but we have heard Id DR. The order of CIT (A) is too cryptic. Apart from being non- speaking order, it nowhere states points for determination, decision thereon with reasons in support as required under the provisions of the Act. 5. Therefore, we have no hesitation in setting aside the CIT(A) s order and restore the matter back to him with a direction to decide the appeal on merits in accordance with law. Order pronounced in the open court on 15.6.2012. Thus as could be seen that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Murlee KK visited the scrutiny officer. But at that time the officer told that it was too late to consider our papers as order was already passed. On receipt of order we had applied for appeal and then later tribunal for justice. From tribunal once again remand back to your office for the consideration. We have got one more scrutiny notice for the Assessment Year 2009-10 which was cleared by us and got the order also (enclosed copy of order). We request your kindself to consider our case and do the needful. The ld. CIT(A) disposed of the appeal in the second round of litigation vide its appellate orders dated 13-02-2014 , by holding as under:- 2.7 I have carefully considered the direction given by the Hon'ble ITAT and the submissions of the appellant. The appellant was given as many as four opportunities by issue of notice u/s.143(2) as well as 142(1) before levy of penalty u/s.271 (1)(b). After the levy of penalty three more opportunities were specifically given. Adhering to the principles of natural justice the AO had given reasonable opportunities, but still the appellant was not in a position to comply by filing the relevant details called for. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d; or (b) where the appellant 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) Nothi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .8.4 I rely on the decision of Kerala High Court in the case of Unnikrishnan (C.) v. Commissioner of Income-tax reported in 233 ITR 485 KER in this regard. The head note is as under: Appeal--Appeal to Commissioner (Appeals) -Production of additional evidence--Requirements to be satisfied -No attempt made by assessee to produce additional evidence either before Assessing Officer or AAC-Failure of assessee to follow requirements of rule 46A--AAC justified in not considering additional evidence--Income-tax Rules, 1962, r. 46A. Rule 46A of the Income-tax Rules, 1962, relates to appellate proceedings before the Commissioner, in the matter of production of additional evidence before the Deputy Commissioner of Appeals and the Commissioner (Appeals). Such production is conditioned by certain situations. The assessee has to show that the Assessing Officer has refused to admit the evidence. The assessee also has to show alternatively that he was prevented by sufficient cause from producing the evidence before the Assessing Officer. Alternatively, further, the assessee also has to show its relevancy to the grounds of appeal sought, to be urged. Lastly, the assessee also has to est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in sub-rule (1)@ of rule 46A, the production of additional evidence is permitted. 2.7.6 Since none of the above 4 exceptional conditions mentioned in Rule 46A are satisfied, the additional evidences filed by the appellant is not admitted and hence the addition made by the AO is sustained. This ground of appeal is dismissed. Thus, it could be observed from the appellate order of learned CIT(A) dated 13-02-2014 in second round of litigation that the ld. CIT(A) did not admit additional evidences filed by the assessee holding that the conditions mentioned in Rule 46A of Income-tax Rules, 1962 were not fulfilled by the assessee and hence the addition made by the A.O. were sustained by learned CIT(A) vide appellate orders dated 13-02-2014 passed in second round of litigation. 4. Aggrieved by the appellate order dated 13-02-2014 passed by ld. CIT(A) in second round of litigation, the assessee filed an appeal before the tribunal in second round of litigation. 5. The ld. counsel for the assessee submitted that the tribunal in the first round of litigation, directed the ld. CIT(A) to adjudicate the matter on merits but it is unfortunate that in the second round o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 2008-09 had observed as under:- This assessee's appeal challenges Id. CIT (A) order confirming penalty u/s 271 (l)(c) of the Act regarding Assessment Year 2008-09. 2. The main grievance of the assessee is that CIT(A) has dismissed his appeal without adverting to facts and nature of the grounds raised, that too, by a totally non-speaking order. 3. As we see from Id. CIT (A) order whose operative part reads as under: In the grounds of appeal as above it has been simply been requested that the matter may be remanded to the AO and opportunity may be afforded. However, before me the assessee has not brought on record the ''reasonable cause because of which it failed to furnish the details called for by the AO. Even in the letter dated 28.1.2011 no such submissions have been made. In view of this, I am of the opinion that the assessee is not having any reasonable cause for giving one more opportunity and hence the findings given in the assessment order are upheld Even on merit, the assessee has not given any detailed submissions with regard to the additions made. Hence, I have no reason to deviate with the findings given by the AO in the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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