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2019 (12) TMI 147

..... e have given a thoughtful consideration to the rival contentions and have carefully perused the application made under Rule 29 of the ITAT Rules. The undisputed fact is that the discretion lies with the Tribunal to admit additional evidence in the interest of justice. It is also not in dispute that Rule 29 of the ITAT Rules is aking to order 41 Rule 27(1) of the CPC. Our view is fortified by the decision of the Hon’ble High Court of Delhi in the case of CIT vs. Text Hundred India Pvt. Limited [2013 (6) TMI 72 - DELHI HIGH COURT]. As mentioned elsewhere with the demise of the Counsel of the assessee the assessee could not be represented properly either before the AO or before the CIT(A). In the interest of justice, the additional evide .....

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..... ). 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 the CBDT. We find that the CBDT vide Circular No.17/2019 dated 8th August 2019 [F.No.279/ Misc.142/ 2007-ITJ (Pt)] by amending para 3 of CBDT Circular No.3/2018 dated 11.07.2018 has enhanced the monetary limit for filing of appeal before Tribunal to ₹ 50 lakhs and has also removed the anomaly in para 5 of said Circular No. 3/2018. We find that the present case does not fall within the exceptions .....

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..... 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 proper appreciation of the issue under appeal and for substantial justice. 8. The DR strongly opposed to the admission of the additional evidences. It is the say of the DR that sufficient opportunities were given by the AO and the CIT(A) but the assessee did not avail those opportunities and now filing fresh evidences which should not be accepted. 9. We have given a thoughtful consideration to the rival .....

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..... as 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 the exercise of discretion in the instant case permitting the additional evidence by the Tribunal, is apposite? It is undisputed that Rule 29 of the Rules is akin to Order 41 Rule 27(1) of the Code of Civil Procedure. The true test in this behalf, as laid down by the Courts, is whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additiona .....

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..... t 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 produce these records before the lower authorities due to non-retrievability of e-mail on the date because of technological difficulties. This reason was specifically mentioned in the application filed. No reply to this application was filed refuting this averment, though the departmental representative had opposed the admission of the additional evidence. The ground pleaded by the assessee was not confronted. In this ba .....

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