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TMI Blog2005 (1) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) in respect of (i) Rs. 1,93,183 in biri account (ii) Rs. 5,16,279 in wrapper, label and labelling account, Rs. 2,00,850 in tobacco account and Rs. 1,50,000 cash credit in the name of Vishwanath Singh on the ground that the Commissioner of Income-tax (Appeals) failed to follow the mandatory provision regarding recording of reasons before admitting new evidence at the appellate stage and also on the ground that no opportunity was afforded to the Income-tax Officer to rebut the evidence?" Briefly stated the facts in the present case are as follows: The matter relates to the assessment year 1974-75. The assessee is individual and disclosed income from the salary, house property, business and from the beneficial interest in the waqf, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat no reasonable opportunity to the assessing authority to examine new evidence produced in evidence and rebuttal, was given. On the above issue the order of the Commissioner of Income-tax (Appeals) was set aside and was restored to his file for deciding the same afresh, according to law after observing the provisions of rule 46A of the Rules. We have heard Sri Shakil Ahmad, learned counsel for the assessee, and Sri A.N. Mahajan, learned counsel for the Revenue. Learned counsel for the assessee submitted that the assessing authority was present before the Commissioner of Income-tax (Appeals) and the said certificate was filed in his presence. He did not raise any objection for admission of the said certificate as additional evidence on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 any ground of appeal; or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of right, in appeal. However, under certain circumstances as mentioned in clauses (a), (b), (c) and (d) of sub-rule (1) of rule 46A, additional evidence can be filed. Sub-rule (2) of rule 46A provides that no evidence shall be admitted under sub-rule (1) unless the authority admitting it records in writing the reasons for its admission. The provision for recording reasons has been made to enable the higher forums to examine the issue, if raised by an aggrieved party, before it, in further appeal, etc., and to avoid arbitrariness in the matter. The authority should not act whimsically while exercising the jurisdiction under rule 46A of the Rules. Sub-rule (2) casts a duty on the authority concerned to record reasons in writing for admission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as placed by learned counsel on paragraphs 16 and 21 of the said judgment in the case of K. Venkataramiah, AIR 1963 SC 1526. The apex court took the view that from the order passed by the High Court for admission of additional evidence it is not possible to say that the same was passed by it without applying its mind. In view of this it was further held that when additional evidence was taken with the assent of both sides or without objection it was taken, it was not open to the party to complain of it, later on. The apex court was considering the provisions of Order 41, rule 27 of the Code of Civil Procedure and made an observation in the light of the aforesaid provision. Rule 46A of the Income-tax Rules was not under consideration before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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