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TMI Blog2019 (12) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... will first take up the Revenue's appeal in ITA No. 5001/Del/2015 on the following grounds: 1. "The Ld. CIT(A) has erred in reducing the gross profit rate from 2% to 1.5%. 2. The Ld. CIT(A) has erred in reducing the disallowance of expenses from 20% to 10%. 3. The Ld. CIT(A) has erred in reducing the addition on account of unloading charges to 50% of total claim i.e. (50% of Rs. 11,02,626/-). 4. The Ld. CIT(A) has erred in reducing addition on account of salary expenses from 50% to 25% of total claim. That the Appellant craves leave to add, amend or modify the ground(s) of appeal at any time." 3. We have heard the learned CIT (D.R.), who has pointed out the tax effect involved in this appeal, is below monetary limit prescribed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t due to reasons beyond the control the assessee could not furnish the necessary documentary evidences before the AO and the AO framed the assessment ex parte u/s 144 of the Act. 6. Before us, the application under Rule 29 of the ITAT Rules for admission of additional evidence has been filed by which the assessee explained that before the assessment proceedings could start the Counsel Shri Subhash Gupta, Advocate died. Subsequent to the death of Shri Subhash Gupta his son Chartered Accountant Sh. Sitish Gupta took over the charge but could not attend the assessment proceedings due to lack of concentration on account of his father's death. 7. The assessee strongly contends that the additional evidences now furnished are necessary for prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al evidence would be necessary to do substantial justice in the matter. It is well-settled that the procedure is handmade of justice and justice should not be allowed to be choked only because of some inadvertent error or omission on the part of one of the parties to lead evidence at the appropriate stage. Once it is found that the party intending to lead evidence before the Tribunal for the first time was prevented by sufficient cause to lead such an evidence and that this evidence would have material bearing on the issue which needs to be decided by the Tribunal and ends of justice demand admission of such an evidence, the Tribunal can pass an order to that effect. 14. The next question which arises for consideration is as to whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt remarked as follows: - "The legitimate occasion for the application of Order 41, rule 27 is when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the court of fresh evidence and the application is made to impart it. The true test, therefore, is whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought o be adduced." [Emphasis supplied] [See also Netha Singh v. Financial Commissioner AIR 1976 SC 1053] 15. In the present case the reason which was given by the assessee in support of its plea for admission of additional evidence was that the assessee could not prod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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