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TMI Blog2017 (6) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... income of the respondent-assessee were deleted. 4. The CIT (Appeals), during the pendency of appeal, had recorded the statement of Sri S.C. Agarwal one of the Directors of respondent-assessee. It is said that the statement so recorded along with the report of the CIT (Appeals) was sent to the Assessing Officer for comments, but as the Assessing Officer failed to respond, the appeal was decided on merits considering the above statement. 5. The Tribunal by the impugned order has affirmed the order of the CIT (Appeals). 6. We have heard learned counsel for the parties and find that proposed questions of law A, B, C, D, gives rise to only one substantial question of law which is as under: Whether the ITAT is justified in affirming the order of the CIT (A) dated 07.06.2013 which was passed without affording proper opportunity to the Assessing Officer to rebut the statement of one of the directors of the respondent-assessee recorded by him in appeal as required under Rule 46-A of the Rules. 7. The other questions of law which have been proposed in this appeal are all of factual in nature. They have been dealt with by the authorities below in extenso and do not give rise to any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... junction with the above power, Rule 46-A of the Rules provide for the production of the additional evidence and that the appellate authority is authorized to take on record additional evidence not only at the behest of the assessee but also on his own behalf to enable it to dispose of appeal or for any substantial cause. 14. Rule 46-A of the Rules which is relevant and material, for the sake of convenience is reproduced herein below: "Rule 46A.-- (1) The appellant shall not be entitled to produce before the [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)], any evidence, whether oral or documentary, other than the evidence produced by him during the course of proceedings before the [Assessing Officer], except in the following circumstances, namely :-- (a) where the [Assessing Officer] has refused to admit evidence which ought to have been admitted ; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only in cases where additional evidence is adduced by the appellant or the assessee. The very wording of sub-Rule 3 that the appellate authority shall not take into account any evidence produced under sub Rule 1 unless the other side is given the opportunity to rebut the said evidence clearly demonstrate that the said sub rule is applicable in respect of the evidence adduced under sub Rule 1 which only authorizes the appellant or the assessee to bring on record the additional evidence. In other words, the said sub Rule is not strictly applicable to cases whether additional evidence is produced by the department or is considered necessary by the appellate authority itself. 18. The power of the appellate authority to direct for the production of a document or examination of the witness as a matter of fact is in furtherance of any enquiry contemplated by Section 250(4) of the Act is contained in sub Rule 4 of Rule 46-A of the Rules and it can be exercised to enable the appellate authority to dispose of the appeal or for any other substantial cause necessary for the adjudication of the controversy involved in appeal. This power of the appellate authority is like a inherent power whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are presumed to be correct inasmuch as at no point of time, the department had filed any application purported to be under Section 154 of the Act or Rule 10 of the Income Tax Appellate Tribunal Rules, 1963 stating that the order is factually incorrect and that the facts relating to the notice/letter given to the Assessing Officer for confronting with the evidence recorded at the appellate stage were in any way incorrect. 26. Thus in the over all facts and circumstances of the case, there is no violation of the principles of nature justice or fair play by the CIT (Appeals) in accepting the additional evidence in the form of the statement of one of the directors of the respondent-assessee. The CIT (Appeals) had given sufficient opportunity to the Assessing Officer confronting him with the said evidence and had given sufficient time to him to respond to the same, but the Assessing Officer failed to avail the opportunity so accorded to him. 27. In view of above discussion we answer the above substantial question of law in favour of the respondent-assessee and against department and hold that the CIT (Appeals) had not committed any error of law, in considering the statement of one of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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