TMI Blog2008 (2) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... law ? 2.Whether, on the facts and in the circumstances of the case, the Tribunal's decision not to admit additional evidence is correct in law in view of Gujarat High Court decision in the case of Pari Mangaldas Girdhardas vs. CIT (1977) CTR 647? Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in upholding the decision of the successor CIT(A) not to consider the evidence produced by the assessee as directed by the predecessor CIT(A) and in itself not considering it?" 2. The Assessment Year is 1991-92, the relevant accounting period being Financial Year ended on 31.03.1991. The assessee, a Private Limited Company, filed return of income on 30.12.1991 declaring total income of Rs.72,900/-. The Assessing Officer made addition on account of unexplained share capital to the tune of Rs.18,40,200/-, disallowed the consultation fees of Rs.75,000/-, and disallowed claim u/s.80-I of the Act. 3. The assessee carried the matter in appeal before the Commissioner (Appeals) who partly allowed the appeal on one another ground but confirmed the Assessment Order in relation to the aforesaid three items by refusing to admit additional evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TAT Rules). The Tribunal rejected the contention raised on behalf of the assessee in the following terms : "6. We have considered the rival submissions and perused the facts on record. A perusal of the assessment order reveals that the Assessing Officer gave adequate opportunity from time to time and asked the assessee to furnish the details/evidence in respect of the share capital as also the names, addresses and share holdings of the holders but the assessee took it very lightly and made no compliance. The assessee thus showed no respect for law. It is an admitted fact that the evidence in respect of the share capital as detailed supra was furnished for the first time before the CIT(A) vide letter dt. 28/12/93 (page 28 of the paper book). We have gone through this letter and find that the assessee submitted 'A detailed chart is enclosed to show what happened on various dates and the assessee remained under the impression that since it was not a time-barring assessment, the assessment would not be finalised'. This shows that the assessee took the whole thing very lightly and rather dictated to the Assessing Officer to take up assessment proceedings at their convenience as it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce could be tendered the Commissioner (Appeals) had been transferred and the successor Commissioner (Appeals) did not permit production of additional evidence. That even the Tribunal did not consider the aforesaid circumstances in which the assessee had been placed while upholding the order of Commissioner (Appeals) and also rejecting the plea for admission of additional evidence under Rule 29 of the ITAT Rules. The learned Advocate therefore pleaded that in the interest of justice an opportunity was required to be granted to the assessee to produce relevant material on record before any addition/ disallowance could be made and all the authorities had erred in law in not granting such an opportunity. Therefore, the High Court should send the matter back to the Tribunal with a direction to admit additional evidence and thereafter decide the merits of the case, viz. whether any addition/disallowance was permissible. In support of the submissions made reliance has been placed on decision of High Court of Orissa in case of Patny Co. CIT, (1955) 28 ITR 414 as well as decision of this High Court in the case of CIT Vs. Kaira District Co-operative Milk Producers' Union Ltd ., (19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o show that before the Tribunal the limited question that was raised was whether the Commissioner (Appeals) had rightly turned down the request made by the assessee for production of additional evidence. Alternatively, it was contended on behalf of the assessee that the Tribunal may exercise discretion vested in the Tribunal vide Rule 29 of the ITAT Rules and admit additional evidence. The Tribunal has come to the conclusion that there was no infirmity in the order of Commissioner (Appeals) rejecting the plea of the assessee for production of additional evidence because, according to the Tribunal Commissioner (Appeals) had rightly come to the conclusion that sufficient opportunities had been granted to the assessee by the Assessing Officer. In fact the finding of the Tribunal on this ground is that the assessee took the entire matter very lightly and asked the Assessing Officer to take up the assessment proceedings at the convenience of the assessee (or may be the Chartered Accountant of the assessee) as pleaded, because the assessment was not getting time barred. If both the Appellate Authorities have concurrently come to the conclusion that sufficient opportunities were granted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders; (2) when the Tribunal requires any documents to be produced or any witness to be examined or any affidavit to be filed for any other substantial cause; or (3) when the Income-tax authorities have decided the case without giving sufficient opportunity to the assessee to adduce evidence either on points specified by them or not specified by them. The said Rule provides that in any of those three cases, for reasons to be recorded, the Tribunal may allow the production of additional evidence. We are not concerned in the present case with a case falling in the third category and we need to say no more about it. Since the provisions of the said Rule are in pari materia with the provisions of order 41, Rule 27 of the Code of Civil Procedure, we may refer to some of the decided cases relating to Order 41, Rule 27(1)(b) C.P.C. in order to appreciate the nature and ambit of the power conferred under Rule 29 upon the Tribunal in so far as the first two categories of cases are concerned". 14. In so far as the said decision is concerned the Court was not called upon to consider whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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