TMI Blog2001 (1) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... violation of r. 46A of the IT Rules. 2. Brief facts of the case, as relevant for the purpose of this appeal, are that the assessment of the assessee-trust was completed under s. 144 as there was no compliance of both the notices issued by the learned AO. The AO observed that the assessee has made donations, in odd amounts, to M/s Anandlok Hospital and that the assessee had also made a donation of Rs. 25,000 to Birla Heart Research Centre the purpose of which was not clear. On these facts, the learned AO inferred that the payments are for non-charitable purposes and, accordingly, it was concluded that disability under s. 13(1)(c) was attracted. Additions were made to the Nil returned income, on account of (i) Rs. 5,07,022 on account of cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the AO any evidence which is relevant to any ground of appeal; or (d) where the AO has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal. In the present case, it is not in dispute that the assessment was done under s. 144 of the IT Act and the additions made by the learned AO were based on inferences drawn by him. It, is, therefore, settled fact that sufficient inquiries were not conducted with regard to the claims made in the return of the assessee and that the case was fixed for hearing on only two dates i.e. on 29th Sept., 1993 and on 16th March, 1994, on which there was no compliance. We have also noticed that the assessee has, in first para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Tribunal in the case of Electra (Jaipur) (P) Ltd. vs. IAC (1988) 26 ITD 236 (Del), which are reproduced below: "After going through the evidence placed before us, considering the facts of this and going through the orders of the authorities below, we are of the view that the assessee should not be disqualified from producing this evidence merely on the ground that the evidence was not placed before authorities below. The sole purpose of judiciary as of the Revenue is to get at the truth. If the truth is that payment of commission was genuine and was dictated by the business needs, such a payment should not be disallowed merely on the ground that assessee was unable to lead proper evidence or on the ground that evidence lead was of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ah vs. CIT (1998) 148 CTR (Bom) 192 : (1998) 231 ITR 1 (Bom), have observed that r. 46A does fetter the right of the assessee to produce evidence but it does not restrain CIT(A)'s powers under s. 250(4) or 250(5) of the IT Act and that this rule appears to ensure that evidence is primarily led before the AO. In view of this judgment of the Hon'ble Bombay High Court, if prima facie an information is necessary to examine the claim of the assessee, the CIT(A) should consider the necessary evidence in exercise of his powers under sub-ss. (4) and (5) of s. 250. It is trite that Rules have to be framed within the scope of main, provision and that a rule, which travels beyond or is inconsistent with or is repugnant to the provisions in the statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein Justice Sabyasachi Mukerjee (as he then was) observed: "It is true, as contended by the counsel of the assessee, that AAC has very vide powers and the interest of the substantial justice he can make further enquiry and he can admit a new ground of appeal. He can also give deductions not claimed by the assessee, as was held by this Court in the case of Union Coal Co. Ltd. vs. CIT (1968) 70 ITR 45 (Cal). In this case, counsel for the Revenue also did not dispute that in certain circumstances the AAC had jurisdiction to admit new grounds if it was necessary to admit new evidence. The point in this case is not whether the AAC is entitled to admit the new ground or evidence either suo motu or at the invitation of parties. In this case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies and donations and financial statements were already filed before the AO, along with the income-tax return. It is also not Revenue's case that filing of additional evidence before the CIT(A) smacks of any mala fides or deliberate intent to act contrary to the scheme of the IT Act. We, therefore, support admittance of additional evidence by the CIT(A). 7. We have already expressed our view, in para. 4 above, that on the given facts, filing of additional evidence before the CIT(A) was covered by r. 46A(1)(c) of the IT Rules, 1962. In the light of the subsequent deliberations, we also find that CIT(A)'s admission of additional evidence was clearly within the scheme of powers vested in him under s. 250(4) of the IT Act because, as held by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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