TMI Blog1987 (10) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... family and was, during the relevant time, carrying on sarafa business at Moth in the district of Jhansi under the name and style of Messrs. Jagannath Prasad Kanhaiyalal. The assessment years under consideration were 1956-57 to 1960-61 and 1964-65 to 1967-68. Tika Ram Yadav was the karta of the family. By a consolidated order dated October 9, 1968, the Income-tax Officer made an assessment of the income of the said firm in respect of the assessment years in question. On I.T.N.S.-51, the income-tax Officer reported that the assessment order and demand notice had been served on the assessee on October 24, 1968. Thereupon, recovery proceedings commenced somewhere in May, 1970, by the assessing Income-tax Officer. These proceedings were challenged by the assessee by way of a writ petition in this court being Writ Petition No. 29 of 1974. Tile recovery proceedings were challenged on the ground that neither the order of assessment nor any notice of demand had been served on the assessee and, consequently, the recovery proceedings were completely without jurisdiction. A counter-affidavit was filed by the Income-tax Officer wherein he categorically asserted that both the assessment order as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the notice of demand for the assessment year 1964-65. There is a clear impression on that notice of demand of the acknowledgment slip pasted thereon which, according to the Income-tax Officer, was intact so long as the writ petition was pending in the High Court but the said slip has been removed therefrom subsequently. The Appellate Assistant Commissioner considered the entire material existing on record and came to the conclusion that the assessment order and the demand notice had been served on Tika Ram Yadav on October 24, 1968, and by a consolidated order dismissed all the nine appeals on the ground of limitation. Thereafter, the assessee filed a further appeal before the Tribunal. With the memorandum of appeal, the assessee filed some fresh documents by way of additional evidence without any application or affidavit stating their relevance or why the same were not filed earlier. The representative of the Department filed a written objection dated January 14, 1980, regarding the manner in which additional evidence was sought to be brought on record by the assessee without following the procedure prescribed by the Income-tax (Appellate Tribunal) Rules, 1963. It was point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal that the assessment orders/notices of demand had been duly served on the assessee as far back as October 24, 1968. The appeals filed by the assessee on August 2, 1977, were hence clearly barred by time and rightly dismissed as such in view of the fact that the only plea raised by the assessee, that the assessment orders/notices of demand were served on it on July 24, 1977, and not earlier, had been rejected on grounds which are perfectly valid and proper. The result is that the first question must be answered in the affirmative and against the assessee. We will next take up the third question. We have already, while answering the first question, referred to the material which existed on the record in support of the finding of the Tribunal that the appeals filed by the assessee before the Appellate Assistant Commissioner were clearly barred by time. On that material, there cannot be the slightest doubt that the Department had fully discharged its burden to prove that the assessment orders/demand notices had been served on the assessee on October 24, 1968. It is not necessary to refer to that material again. Learned counsel for the assessee, however, submitted that witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it the case of the assessee that it was not afforded the opportunity to adduce that evidence before the Income-tax Officer. Neither even was it alleged that these documents were either not in the possession of the assessee nor it could not by exercise of due diligence obtain the same earlier. It is thus apparent that none of the grounds or conditions precedent mentioned in rule 29 for the exercise of power or discretion by the Tribunal had been either alleged or established. The assessee had not indicated by means of any application or affidavit even the relevance of these documents. It appears that the assessee insisted that these documents be accepted on the record as a matter of course in support of his appeals. The Tribunal declined to accept the additional evidence stating that on due consideration of the rival contentions, it was not inclined to entertain additional evidence at that stage, since the assessee had not observed the prescribed procedure laid down in the Income-tax (Appellate Tribunal) Rules, 1963. For the assessee, it was contended before us that rule 29 does not require or prescribe the making of any formal application for leave to adduce additional evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence to the points at issue may, however, invite the Tribunal to invoke its power under rule 29 on the ground that the evidence was not available earlier or the party was prevented from adducing it before the authorities below or for any other substantial cause. But, for asking the Tribunal to exercise this power, the party shall have to lay the necessary foundation relevant in the context of the conditions prescribed under rule 29. A clear and specific pleading in support of the claim that a case for allowing additional evidence at the appellate stage before the Tribunal has been made out shall have to be furnished by way of notice to the other side in the shape of either of an application or an affidavit. And if the party fails to lay that foundation, the Tribunal may legitimately decline to exercise its discretion under rule 29. It is in this sense that the Tribunal has observed that the procedure prescribed for bringing on record additional evidence at this stage has not been followed by the assessee. In Black's Law Dictionary, at page 1083, the term " procedure " has been defined as: "The mode of proceeding by which a legal right is enforced ...... Procedure is machinery f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, he is authorised under section 31(2) to make such further enquiry as he thinks fit, or cause further enquiry to be made by the Income-tax Officer before he disposes of the appeal filed before him. Section 31(2) means that at the appellate stage additional evidence may be taken and further enquiry may be made in the discretion of the Appellate Assistant Commissioner. When the matter goes before the Appellate Tribunal under section 33, the question about the admission of additional evidence is governed by rule 29 of the Income-tax (Appellate Tribunal) Rules, 1963. This rule provides that the parties to the appeal shall not be entitled to produce additional evidence, either oral or documentary, before the Tribunal, but if the Tribunal requires any documents to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, or if the Income-tax Officer has decided the case without giving sufficient opportunity to the assessee to adduce evidence either on points specified by him or not specified by him, the Tribunal may allow such document to be produced or witness to be examined or affidavit to be filed or may a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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