TMI Blog2020 (2) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the ratio laid down in the aforesaid decision. However, the Hon'ble Jurisdictional High Court was dealing with a case where the first appellate authority refused to admit the additional evidences filed by the assessee. In that context, the Hon'ble Jurisdictional High Court explaining the power of the first appellate authority under section 250(4) and (5) of the Act, held that the additional evidences filed by the assessee should not be rejected as the power of the learned Commissioner (Appeals) in making enquiry and calling for evidences is much wider and is not restricted by rule 46A - we are inclined to set aside the impugned order of learned Commissioner (Appeals) and restore the issue back to his file for fresh adjudication after necessary compliance with the provisions of rule 46A. Grounds are allowed. Revenue s appeal is allowed for statistical purposes. - ITA no.3510/Mum./2018, C.O. no.221/Mum./2019 (Arising out of ITA no.3510/Mum./2018) - - - Dated:- 7-2-2020 - Shri Saktijit Dey, Judicial Member And Shri G. Manjunatha, Accountant Member For the Assessee : Shri Dinesh R. Shah For the Revenue : Shri Abhijit Patankar ORDER PER SAKTIJI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est received of ₹ 2,41,44,807, whereas, as per the ITS details, the total income received is ₹ 3,87,15,028=40. Since the assessee neither appeared nor explained the mismatch and the derivative transaction, the Assessing Officer made total addition of ₹ 58,21,22,471, to the income of the assessee. The assessee challenged the addition by filing an appeal before the first appellate authority. 5. In course of proceedings before the learned Commissioner (Appeals), the assessee furnished certain additional evidences with regard to the addition of ₹ 56,75,52,250, as unexplained investment under section 69C of the Act on the basis CIB information. To explain the aforesaid transaction, the assessee furnished additional evidences along with a written note. After considering the submissions of the assessee and evidences filed, learned Commissioner (Appeals) deleted the addition made of ₹ 56,75,52,250. 6. The learned Departmental Representative submitted, the Assessing Officer has received CIB information with regard to the investment of ₹ 56,75,52,250, made by the assessee in derivative and futures options transactions. He submitted, in course of as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be served by merely restoring the issue for technical reasons. The learned Authorised Representative submitted, the assessee has reconciled all the discrepancies/differences contained in CIB/AIR information. Therefore, there is no reason to again restore back the issue to the Assessing Officer. In support of such contention, the learned Authorised Representative relied upon the decision of the Hon'ble Jurisdictional High Court in Smt. Prabhavati S. Shah v/s CIT, [1098] 100 Taxman 404 (Bom.). Without prejudice, the learned Authorised Representative submitted, if Revenue s plea of violation rule 46A is accepted, the issue may be restored back to the file of learned Commissioner (Appeals) for fresh adjudication after complying to the provisions of rule 46A. 8. We have considered rival submissions and perused the material on record. Undisputed facts are, the return of income filed by the assessee was selected for scrutiny for certain reasons enumerated in the earlier part of the order. In the course of assessment proceedings, the Assessing Officer wanted to verify the issues on which the return of income was picked up for scrutiny and accordingly issued notice under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n his own furnishes additional evidences before the first appellate authority, such evidences shall not be taken into account unless the Assessing Officer has been allowed a reasonable opportunity verifying such evidences and offering his comment. Therefore, the power of the first appellate authority, as conferred under section 250(4) r/w rule 46A(4) is different from the opportunity given to the assessee under rule 46A(1). While rule 46A(1) is circumscribed by certain conditions, rule 46A(4) is not so as it provides ample power in terms of section 250(4) to the first appellate authority to make necessary enquiry for disposal of the appeal. In the present case, we are dealing with a situation as envisaged under rule 46A(1). It is evident from the facts on record, learned Commissioner (Appeals) on his own has neither made any enquiry nor has called for any evidences from the assessee. It is the assessee who, on his own, has furnished the additional evidences to explain the information contained in CIB/AIR report. Therefore, the procedure laid down in sub rule (2) and (3) or rule 46A, has to be followed. In the facts of the present case, undisputedly, the procedure laid down in sub r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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