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TMI Blog2024 (1) TMI 1196X X X X Extracts X X X X X X X X Extracts X X X X ..... le 46A of the Income-tax Rules, 1962, while admitting additional evidence? (b) Whether in the facts and circumstances of the case and in law, the order of the learned ITAT is erroneous, illegal and ex-facie perverse, because the learned ITAT has not appreciated the fact that, the assessee had not been able to produce bills and evidence providing the purchase as genuine during the course of remand proceedings?" 3. The brief facts of the case are that the assessee who is an individual and proprietor of one M/s. Nishra Enterprise dealing in waste craft paper filed return of income for the year under consideration on 29.11.2014, declaring the total income of Rs. 3,55,840/-. 4. The return was taken up for scrutiny assessment due to large amount of sundry creditors with respect to turnover of the assessee compared to the preceding year as the assessee claimed sundry creditors amounting to Rs. 6,15,17,916/- for the year under consideration whereas for the previous assessment year 2013-14 the creditors were only of Rs. 84,23,451/-. 5. Though the assessee was given more than ten opportunities, did not respond to the notices and therefore it was not possible for the Assessing Officer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the Revenue is that in spite of 10 hearing notices, the assessee failed to appear and explain the case of the assessee before Assessing Officer which resulted in passing ex-parte assessment order. During the appellate proceedings, of the assessee explained his illiteracy and thereby filed the details of Audited accounts; HDFC Bank account transaction details, Confirmation of accounts from M/s. Kingston Peptech P. Ltd. and M/s. Om Enterprise and copies of sample sales bills from the sellers. One such sample invoice namely Invoice No. 192 dated 1210-2013 for a sum of Rs. 1,43,382/- with proper VAT Tax and dispatch through Truck No. GJ-1CT-6161 to Badol which is available at Page 61 of the Paper Book. 7.1. Similarly in the case of M/s. Om Enterprise Invoice No. 79 dated 24-102013 for a sum of Rs. 76,561/- which is inclusive VAT Tax with proper Sales Tax Registration Number of the seller. Further perusal of the HDFC Bank account makes it very clear regular cheque payments were made by the assessee through the continuation of the business with Kingston Peptech P. Ltd. as well as the Om Enterprise and various other suppliers. After considering the above material on record, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above contentions we have perused the order passed by the CIT(A) wherein it is observed as under: "Decision: 5. I have carefully considered the assessment order, grounds of appeal raised and submission of the appellant along with comments in remand report and rejoinder filed by the appellant. The AO has objected to acceptance of additional evidences. The para 3.1 of the remand report is reproduced as under: "3.1 As additional evidences assessee has submitted the ledger accounts of Kingston Peptech P. Ltd. and Om enterprise from its own books of accounts as well as from the books of Kingston Peptech P. Ltd. and Om enterprise. From the verification of same it has been ascertained that assessee had not produced the supporting bills/vouchers for the purchases made from the above mentioned parties. It has also been found that on some dates assessee had made payments but had not furnished banks details/proof of payments. Moreover assessee had not furnished the Audit Report along with Balance Sheet and P & LA/c of Kingston Peptech P. Ltd. and Om enterprise. Therefore, only from the ledger account of concerned creditors, the genuineness and creditworthiness of the creditors is not e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; As per Assessment Order 5,30,94,465 As stated in the Table, the contra accounts are forming part of paper book. The few bills for the purchase with the payment by account payee cheque shown in the bank statement are forming part of paper book. 5. From the above, it is clear that the creditors which are added by the AO are genuine and therefore the same should be allowed. Your honour is therefore prayed to allow the appeal." The judicious decision can only be arrived if the facts of the case are seen and appreciated. In this case, the appellant has in his possession the report u/s 44AB dated 28-11-2014, copy of return of income filed by the creditors, the PAN and full addresses of the creditors, copy of account of creditors in the books of account of appellant and the proof that the appellant has continuous trading relationship with the creditors. All such evidences are corroborative and cannot be manipulated at this stage. The AO had opportunity to cross verify any information if he had desired during remand proceedings but chose the path of least resistance and sent remand report in a very routine manner. The independent corroborative evidences placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner (Appeals) records in writing the reasons for its admission. (3) The [Deputy Commissioner] (Appeals) or, as the case may be, the Commissioner (Appeals) shall not take into account any evidence produced under sub-rule (1) unless the Assessing Officer has been allowed a reasonable opportunity- (a) to examine the evidence or document or to cross-examine the witness produced by the appellant, or (b) to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the appellant. (4) Nothing contained in this rule shall affect the power of the [Deputy Commissioner] (Appeals) or, as the case may be, the Commissioner (Appeals) to direct the production of any document, or the examination of any witness, to enable him to dispose of the appeal, or for any other 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. Form of appeal and memorandum of cross-objections to Appellate Tribunal." 13. In view of the above provisions of Rule 46A of the Rules, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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