TMI Blog2017 (6) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... me Tax Appeal No. 187 of 2016 - - - Dated:- 25-5-2017 - Hon'ble Pankaj Mithal And Hon'ble Vinod Kumar Misra, JJ. For the Appellant : Manu Ghildyal For the Respondent : Ashish Bansal, Rupesh Jain ORDER 1. Heard Sri Manu Ghildyal learned counsel for the appellant and Sri Rupesh Jain along with Sri Ashish Bansal for the respondent-assessee. 2. The appeal under Section 260-A of the Income Tax Act has been preferred against the order of the Income Tax Appellate Tribunal (ITAT) dated 15.03.2016, whereby the tribunal has affirmed the order of Commissioner of Income Tax (Appeal). 3. The respondent-assessee filed its return of income for the assessment year 2009-10 showing loss of income. The assessment was completed under Section 143(3) of the Act on 16.08.2012 and the taxable income of the respondent-assessee was computed as 157,33,11,500/-. The assessment order was taken in appeal before the CIT who partly allowed the appeal vide order dated 07.06.2013 and certain additions to the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer but as the time was short, he had submitted letter dated 17.05.2013 which was received by the CIT (Appeals) on 21.05.2016 requesting for further time but the CIT (Appeals) without considering it or without allowing any further time proceeded to decide the appeal on merits. Thus, it is suggested that no proper opportunity to rebut the additional evidence was given to the respondent-assessee before passing the order dated 07.06.2013 by the CIT (Appeals). 11. In this regard Section 250 of the Act is relevant. It lays down the procedure to be followed in appeal. It provides that the appellate authority may make such further enquiry as it think fit or may direct the Assessing Officer to make further enquiry to report the result of the same to it for the purposes of decision of the appeal on merits. 12. The aforesaid provision clearly establishes that the Commissioner is not denuded of the power to make further enquiry in the matter as may be considered proper in the interest of justice for deciding the appeal. 13. In conjunction with the above power, Rule 46-A of the Rules provide for the production of the additional evidence and that the appellate authority is authorize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sub-section (1) of section 251 or the imposition of penalty under section 271.] 15. A bare reading of Rule 46-A(1) would show that it is a provision for adducing additional evidence on behalf of appellant that is the assessee. It is not a provision which authorizes the department to adduce additional evidence or the appellate authority to take suo-moto action for additional evidence. The power to adduce additional evidence by the assessee is limited to the four grounds enumerated under Clauses (a), (b), (c) (d) of sub Rule 1 of Rule 46-A of the Rules. 16. Sub rule 2 of the aforesaid Rules 46-A provides that in taking additional evidence the appellate authority shall record reasons in writing for its admission but this rule is applicable only in respect of the evidence adduced under Sub Rule 1 of Rule 46-A of the Rules and not otherwise. 17. Similarly, sub Rule 3 of Rule 46-A of the Rules which allows the appellate authority to give reasonable opportunity to the other side to examine the evidence or to cross examine the witness in rebuttal is applicable only in cases where additional evidence is adduced by the appellant or the assessee. The very wording of sub-Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer may have written a letter on 17.05.2013 seeking further time but there is no mention of any such letter having been received by the CIT (Appeals) in his order. The fact however remains that the CIT (Appeals) had passed the final order only on 7th June, 2013 after waiting till 6th June 2013 for the reply of the the Assessing Officer. Even a reminder was sent to him on 29.5.2013 but to no effect. It means that the Assessing Officer was granted sufficient time to rebut the above statement but he failed to avail the same. 23. The order of the CIT (Appeals) was challenged before the tribunal not only by the respondent-assessee but by the revenue also. 24. The revenue in the memo of appeal has not taken any specific ground that the time granted by the CIT (Appeals) was not enough or that the Assessing Officer required much more time than that was ultimately made available to him for filing his reply. The said appeal is completely silent and does not dispute even the receiving of the reminder letter. 25. This apart, the facts stated in the order of the CIT (Appeals) are presumed to be correct inasmuch as at no point of time, the department had filed any applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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