9911796707
TMI Blog2023 (4) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... ther in law and in the facts and in the circumstances of the case, the CIT(A) and the ITAT, were justified in admitting new evidence being the order dated 31/7/2001, issued by the Director General (Exemption), though the assessee had not made out a case for admitting new evidence under Rule 46A(1) of the Income Tax Rules, 1962." 3. The Appellant is aggrieved by the Judgment and Order dated 07.04.2006 passed by the Income Tax Appellate Tribunal, Panaji (ITAT, for short), dismissing the Appeals filed by the Department. 4. It is the case of the Department that the Respondent-Asessee set up a Tourism Resort in the State of Goa w.e.f. 06.12.1990. The Assessee has filed a return under Section 8(3) of the E.T. Act, in form No.3 of Expenditure T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empted under Section 80(IA)(4)(iii) of the IT Act from Expenditure Tax w.e.f. 06.12.1990 relevant to Assessment Year 1991-1992. 8. The CIT(A) by Order dated 23.04.2002, relying on the Order passed by the Director General (Exemption) Kolkata, dated 31.07.2001, which was produced before him for the first time, held that the Assessee is out of the mischief of Section 3 in view of the proviso to Section 4(a) of the ET Act. 9. The Department filed Appeal before the ITAT challenging CIT(A) Order on several grounds, inter alia, that the CIT(A) ought not to have admitted new evidence being Order dated 31.07.2001 and, secondly, that the approval was for only one Assessment year 1991-1992. The ITAT, by the impugned Order dated 07.04.2006, opined th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Counsel Shri Pangam, appearing on behalf of the Respondent-Assessee argued in support of the impugned Order. It is submitted that there are concurrent orders passed by the CIT(A) & the ITAT which are in consonance with the provisions of Rule 46-A of the Rules and hence the impugned orders do not warrant any interference. It is further submitted that what is being claimed by the Assessee is the benefit of exemption order dated 31.07.2001 in terms of the provisions of Sections 80-IA(5)(ii) and 80-IA(1)(iii) read with Rules 18BBC of the Income Tax Act, 1962 approved for the purpose of the said Section w.e.f. 06.12.1990. The exemption Order came to be passed after the Order of the AO. The Appellant produced the said exemption Order befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31.07.2001 be taken into consideration in support of the Appellant's case. The exemption Order was the additional evidence. At this juncture, it is pertinent to re-produce Section 46-A of the IT Rules. The same reads thus : "[Production of additional evidence before the Deputy Commissioner (Appeals)] [and Commissioner (Appeals)]. 46-A(1) The appellant shall not be entitled to produce before the [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)], any evidence, whether oral or documentary, other than the evidence produced by him during the course of proceedings before the Assessing Officer], except in the following circumstances, namely :- a) where the[Assessing Officer] has refused to admit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantial cause including the enhancement of the assessment or penalty (whether on his own motion or on the request of the [Assessing Officer]) under clause (a) of sub-section (1) of section 251 or the imposition of penalty under section 271." 15. Reading of Rule 46-A indicates that additional evidence can be admitted by the CIT(A) subject however to the satisfaction of the conditions mentioned in Rule 46-A(1)(c). The fact that an exemption Order dated 31.07.2001 referred to above was issued is not in dispute. The exemption Order enures to the benefit of the Assessee. The findings of the CIT(A) reveals that the CIT(A) was conscious of the provisions of Rule 46-A(1)(c) of the IT Rules. It is observed by him that the exemption Order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect to. The CIT(A), upon production of the exemption Order, the validity of which is not under dispute, proceeded to give effect to the said Order and, accordingly allowed the Appeal. Rule 46-A empowers the CIT(A) to admit new evidence subject to the conditions stipulated therein. 18. If in the facts of the present case, the CIT(A) was of the opinion that the Assessee was prevented from sufficient cause in producing the exemption Order before the AO which is relevant to any ground of appeal, we do not find error with this approach adopted by the CIT(A). The exemption Order was made only after the Order of the AO. 19. We also do not find any merit in the contention of the learned Counsel for the Appellant that CIT(A) has not recorded reas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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