TMI Blog1981 (7) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... mine the witnesses whose evidence was taken on record. The AAC on appreciation of the evidence on record deleted the addition made by the ITO. The revenue went in appeal before the Income-tax Appellate Tribunal (hereinafter referred to as " the Tribunal ") against the decision of the AAC. It was contended on behalf of the revenue that the AAC ought to have given an opportunity to the ITO to counter the additional evidence and to cross-examine the witnesses whose evidence was taken on record by him. The Tribunal found that the AAC had given notice of hearing of the appeal to the ITO but the ITO did not choose to remain present at the hearing of the appeal. The Tribunal was, therefore, of the opinion that it was not necessary for the AAC to g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to produce any evidence in rebuttal of the additional evidence produced by the assessee. It is, therefore, obvious that the AAC could not have relied on the additional evidence without giving such opportunity to the ITO. The mere fact that notice of hearing of the appeal was given to the ITO would not meet the requirements of the above rule. Even if no such rule was in existence, ends of justice and fair play demand that when an assessee produces additional evidence in his appeal an opportunity is given to the ITO to test the evidence or to counter the effect of the evidence by producing evidence in rebuttal or otherwise. The reason is self-evident. It stands to reason to presume that the ITO took his decision not to remain present becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to lead additional evidence which no one could have anticipated or reasonably foreseen. Ordinarily, the appeal would be decided on the evidence recorded in the course of assessment proceedings. The ITO, therefore, may not, in a given case, think it necessary to remain present at the hearing of the appeal. He, however, cannot be expected to anticipate that additional evidence might be produced by the assessee in his appeal. It is for this reason that it is necessary to give him an opportunity to meet the additional evidence. The Tribunal has, therefore, fallen into an error in rejecting the plea of the revenue that the AAC ought to have given an opportunity to the ITO to examine the additional evidence or to cross-examine the witnesses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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