TMI Blog2018 (5) TMI 2035X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities below. We observe that the additional evidence filed by assessee in the form of certificate from an Architect indicating the area of plot of land by applying triangular method as more than 4046.87 Sq. Mt. was obtained by assessee on 03.09.2015 i.e. much after the passing of assessment order giving effect to the order of Commissioner of Income Tax u/s. 263 of the Act. No occasion for the assessee to furnish certificate before Commissioner of Income Tax or the Assessing Officer. Additional evidence furnished by assessee goes to the root of issue in determining assessee s eligibility to claim benefit of deduction u/s. 80IB (10) - admission of additional evidence is thus, necessary for proper adjudication of the case. Non acceptance of additional evidence would result in assessee loosing the benefit if otherwise; the assessee is eligible for claiming the same. Therefore, we admit the additional evidence filed by the assessee. Since this certificate from an Architect has been furnished for the first time before the Tribunal as additional evidence, the Revenue had no occasion to test veracity of this document. The ld. AR has stated at the Bar that the assessee has no o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is equal to 1 acre. The ld. AR filed an application for admission of additional evidence in the form of certificate of Architect to the effect that area of plot by triangular method is 4097.13 Sq. mt. which is more than 1 acre. The ld. AR to support his submissions placed reliance on the following decisions: 1) Taurus Enterprise Vs. DCIT, ITA No. 85/PN/2011, Assessment year 2007-08 decided on 12.04.2012. 2) Late Shri Krishanchand Vaswani Vs. ITO, Assessment year 2009-10 decided on 31.12.2014. The ld. AR submitted that the Assessing Officer may be directed to consider the certificate from Architect. The ld. AR further contended that the assessee has no objection even if fresh measurement of the plot of land is carried out. 4. On the other hand, Dr. Vivek Aggarwal representing the Department vehemently defended the action of Commissioner of Income Tax in setting aside the assessment order and directing Assessing Officer to re-frame the assessment after withdrawing benefit of deduction u/s. 80IB (10) of the Act. The ld. DR submitted that the assessee has not placed on record any evidence whatsoever before the Authorities below indicating that the land of the assessee is m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his contentions, the ld. AR placed reliance on the decision of Hon'ble Bombay High Court in the case of Herdillia Chemicals Ltd. Vs. Commissioner of Income Tax reported as 221 ITR 194 ( Bom.). The ld. AR further submitted that duty of the Assessing Officer is to assess correct income in the hands of assessee. Where the assessee has inadvertently offered more income to tax, the duty is cast upon the Assessing Officer to guide the assessee and assess correct tax liability. The ld. AR in support of his submission placed reliance on the CBDT circular dated 11.04.1955 and the decision of Hon'ble Bombay High Court in the case of Ahmedabad Electricity Co. Ltd. Vs. Commissioner of Income Tax reported as 199 ITR 351 (FB). 5.2 The ld. AR further submitted that the assessee cannot be penalized for the wrong advice given by Chartered Accountant. The assessee has obtained certificate from the Architect after completion of proceedings u/s. 263 of the Act. Therefore, there was no occasion for the assessee to furnish this document either before the Commissioner of Income Tax or the Assessing Officer. 6. We have heard the submissions made by representatives of rival sides and have per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It also cannot be said that the Tribunal committed any material irregularity and violated any procedure and such action is illegal or bad in law. In fact, we find principles of natural justice and fair play to have been adhered to and fully complied with. Further, the Hon'ble High court held that the term record as mentioned under section 263 of the Act does not impede the powers of Tribunal to consider additional material for passing necessary orders. The Hon'ble High court observed: 122. As is evident, definition of word record , inclusive in nature, is restricted to and confined only to the exercise of power by the Commissioner and would not relate to the amplitude of the power exercisable by the Tribunal to pass such orders as it deems fit . Thus, from the decision of Hon'ble High Court, it is amply clear that the Tribunal can accept additional evidence for proper adjudication of the case even in proceedings u/s. 263 of the Act. 8. We observe that the additional evidence filed by assessee in the form of certificate from an Architect indicating the area of plot of land by applying triangular method as more than 4046.87 Sq. Mt. was obtained by as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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