Saturday, 6 November 2021

Decoding of Rule 46A of the Income Tax Rules, 1962 related to production of additional evidence before the first appellate authority after an assessment being made by the Assessing officer

Clause (mm) was inserted vide Finance Act, 1972, with effect from 01.04.1972 in section 295(2) to empower the rule-making authority to prescribe the circumstances in which, the conditions subject to which, and the manner in which, the Commissioner (Appeals) may permit an appellant to produce evidence, which could not be produced before the Assessing Officer. Armed by the said power, CBDT framed rule 46A in the Income-tax Rules, 1962 with effect from 01.04.1993.

Additional evidence

The Evidence in respect of an issue arising before the Assessing Officer and required to be submitted before him is not submitted by the assessee but is sought to be submitted before the CIT(A). This is a technical term used under Rule46A which explains that additional evidence would be evidence other than already submitted before Assessing Officer and is sought to be submitted first time before CIT(A). Additional evidence can be allowed only after (i) recording the reasons by the CIT(A), (ii) the case of the assessee falls under any of the four exceptions provided under Rule 46A(1) and (iii) to provide reasonable opportunity of being heard to the Assessing Officer to examine the document, to cross examine the witness and to adduce evidence/witness to rebut the additional evidence submitted by the assessee.

CIT (A) is the first stage where additional evidences could be moved under rule 46A. There is a proper mechanism to deal with such application. On receiving the application under rule 46A, the CIT (A) is required to remanded it to the assessing officer to verify the evidences moved by the appellant. CIT (A) admission of evidences without remanding it to assessing officer were not found substance in the eye of law and the cases have been set aside by the higher appellant authorities.

Text of Rule 46A

PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE DEPUTY COMMISSIONER (APPEALS) AND COMMISSIONER (APPEALS)

46A. (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 evidence which ought to have been admitted ; or

(b)   where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the Assessing Officer; or

(c)   where the appellant was prevented by sufficient cause from producing before the Assessing Officer any evidence which is relevant to any ground of appeal; or

(d)   where the Assessing Officer has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal.

(2) No evidence shall be admitted under sub-rule (1) unless the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (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. CIT(A) can admit additional evidence or documents only after applying rule 46A.

Circumstances for which production of additional evidence may be allowed [Rule 46A(1)]

The appellant shall not be entitled to produce before 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 evidence which ought to have been admitted; or

(b) where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the Assessing Officer; or

(c) where the appellant was prevented by sufficient cause from producing before the Assessing Officer any evidence which is relevant to any ground of appeal; or

(d) where the Assessing Officer has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal.

CIT(A) to record in writing the reasons of its admission of additional evidence [Rule 46A(2)]

No evidence shall be admitted under rule 46A(1) unless the Commissioner (Appeals) records in writing the reasons for its admission.

Reasonable opportunity to be provided to the Assessing Officer [Rule 46A(3)]

Rule 46A(3) of Income Tax Rules, 1962 provides that the CIT(A) shall not take into account any evidence produced under rule 46A(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.

Thus, Sub-rule (3) of Rule 46A of the Rules provides that the Commissioner unless provides a reasonable opportunity to the Assessing Officer in respect of the evidence produced under sub-rule (1), such evidence shall not be taken into account. Where the Assessing Officer is not only to be permitted to examine or cross-examine the evidence/document or the witnesses, but also to be offered an opportunity of rebuttal of evidence.

 

Violation of rule 46A - Consequences

Any order passed by the Commissioner (Appeals) granting relief to the appellant by admitting additional evidence but without giving a specific opportunity of being heard to the Assessing Officer to rebut the same is in contravention of rule 46A(3). Such orders are liable to be set aside and the matters are normally restored back to the file of the Assessing Officer for fresh examination.

 

Additional evidence can be obtained by the CIT(A) on its own motion [Rule 46A(4)]

Nothing contained in rule 46A shall affect the power of the CIT(A) 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 section 251(1)(a) or the imposition of penalty under section 271. In other words, Rule 46A(4) empowers the CIT(A) to direct the appellant to produce evidences or documents or examination of any witness to enable him to dispose of the appeal or for any other substantial cause.

Power of the CIT(A) shall not affect [Rule 46A(4)]

As far as sub-rules (4) of Rule 46A of the Rules is concerned, it speaks of the power of Commissioner (Appeals) to direct production of any document or evidence or examination of witness, (i) to enable him to dispose of the appeal, (ii) for any other substantial cause including the enhancement of the assessment, (iii) for imposition of penalty under clause (a) of sub-section (1) of section 251 or (iv) imposition of penalty under section 271.

As far as sub-rule (4) of Rule 46A is concerned, the powers are exercised by the Deputy Commissioner (Appeals) or Commissioner (Appeals) directing the appellant to produce any document or examination of witness. These powers are needed to be exercised for enabling the Commissioner to dispose of the appeals or for any substantial cause or for the purpose of imposition of penalty as provided under this Rule.

The Commissioner (Appeals) would have ample power to call for any additional evidence, oral or documentary, if it considers such production necessary in the interest of justice for disposing of the appeal or for any other substantial cause. It goes without saying that while exercising such powers of admission of the additional evidence, the powers are required to be exercised within the limits imposed by the Rule and both sides are required to be afforded due and reasonable opportunity in respect of such evidences.

 

Notice of hearing to Assessing Officer – Whether is tantamount to compliance under Rule 46A

As per section 250(1), the CIT(A) has to give notice of hearing to the Assessing Officer against whose order appeal is preferred. When such a notice is given, often a plea is raised on behalf of the assessee that there is sufficient compliance of rule 46A as the Assessing Officer has been given opportunity of being heard and such an opportunity may also be construed to be an opportunity to rebut the additional evidence produced by the assessee. This view has not found favour with the courts.

Spacimen of Grounds of Appeal to be taken before the CIT(A) for accord kind permission for producing of additional evidences under Rule 46A of Income Tax Rules, 1962

   I.          That the assessee praying to produce additional evidence as the assessee has fulfilled the condition prescribed under Rule  46A of the Income Tax Rules, 1962 and prays for admission of additional evidence before the CIT (A) as the appellant was prevented by sufficient cause from producing evidence before the Ld. Assessing Officer which is relevant to the grounds of appeal

 II.          That the assessee praying to produce additional evidence as these go to the very root of the matter and involve a substantial cause in determining the correct income and the correct tax liability of the assessee for the year under appeal as the Ld. Assessing Officer has made the order appealed against exparty to adduce evidences.

 III.          That the assessee praying to produce additional evidence in your honour in the Form of  Computation of Income alongwith documentary evidences……….

Spacimen of Application for prayer to accord kind permission for producing of additional evidences under rule 46A of Income Tax Rules, 1962

To

The Commissioner of Income Tax (Appeals)

………………….

Sir,

Subject : Prayer to accord kind permission for producing of additional evidences under Rule 46A of Income Tax Rules, 1962 in the case of Shri …………….. - PAN …………. for Assessment year …..  – Regarding

                                                                         ***

Kindly refer to appeal filed on ……………. in respect of above mentioned case.

 

2. In this connection, it is submitted that as per the provisions of Rule 46A para(b), (c) & (d), the assessee may kindly be accorded permission to produce additional evidences in the form of following documents to further justify our claims as per the provisions of Income-tax Act and involved a substantial cause in determining the correct tax liability of the assessee for the year under appeal.

. (i) Explanation regarding ……………………,

(ii) Copy of Bank account statement of the appellant for the relevant period,

(iii) Copy of Bank account statement of ………………..

(iv) Copy of evidence of………..

(v) Copy of affidavit which confirmed the …………………

(vi) Copy of evidence of ………………….

(vii) …………………………………………

 

3. The assessee was prevented by sufficient cause from producing these evidences which was called upon by the Assessing Officer to produce. The Assessing Officer thereby passed an order and made the additions without any material. These additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within her knowledge or could not, after the exercise of due diligence, be produced by her at the time when the order

appealed against was passed. They go to the very root of the matter and involve a substantial cause in determining the correct income and the correct tax liability of the assessee for the year under appeal.

 

4. It is, therefore, praying in your honour to accord kind permission under Rule 46A of the Income Tax Rules, 1962 to produce the above mentioned additional evidences as the assessee has fulfilled the conditions prescribed under Rule 46A of the Income Tax Rules, 1962.

 

Enclosures: As above                                                                                             Yours Sincerely

 

Where claim for business expenditure was not made in original return of income, said claim was rightly decided by Tribunal; said issue not be remitted back to Assessing Officer as no claim of expenditure was made before Assessing Officer

Rule 46A(3) of the Income-tax Rules, 1962 - Assessee-company was engaged in business of distilieries - Claim for prior period expenses and excise transport fees was made for first time before Commissioner (Appeals). Tribunal allowed said claim. On appeal, revenue contended that fresh claim could not be made without filing revised return and Tribunal ought to have remitted matter to Assessing Officer. On other hand, Tribunal recorded finding that assessee had claimed deduction before Commissioner (Appeals) for first time and same was not claimed originally on an erroneous impression that these expenses were not allowable under Act. Tribunal further noted that even though detailed submission was made before Commissioner (Appeals), claim of assessee was rejected on ground that expenses did not pertain to current assessment year. Tribunal recorded findings based on evidence on record that expenses were incurred during relevant assessment year. Since findings of Tribunal was finding of facts which was based on meticulous appreciation of evidence on record and further Commissioner (Appeals) had dealt with claims of assessee on merit, Tribunal had rightly dealt with claims of assessee on merits and had rightly allowed deduction even though same was not claimed in original return and there was no need to remand matter as claim was not adjudicated earlier. [In favour of assessee] (Related Assessment year : 2002-03) – [CIT v. Shaw Wallace Distilleries Ltd. (2021) 278 Taxman 67 : 124 taxmann.com 510 (Karn.)]

Where Commissioner (Appeals) admitted additional evidences/enclosures submitted by assessee without confronting same to Assessing Officer and without obtaining comments/remand from Assessing Officer on said additional evidence and deleted an addition under section 68 made to assessee’s income on basis of such evidences, impugned order of deleting addition on basis of such additional evidenced was unjustified

Rule 46A clearly shows that assessee is not entitled to produce fresh oral or documentary evidence as a matter of right before Appellate authority until and unless appellate authority gives specific directions to assessee for production of any such document to enable him to dispose off appeal. Assessing Officer passed an assessment order against assessee making an addition under section 68. Before Commissioner (Appeals), assessee produced certain additional evidences/enclosures on basis of which he deleted impugned additions made to income of assessee under section 68. It was noted that these additional evidences were submitted by assessee for first time before Commissioner (Appeals) on his own without any direction from Commissioner (Appeals). Further, Commissioner (Appeals) had admitted additional evidences/enclosures without confronting same to Assessing Officer and without obtaining comments/remand from Assessing Officer on said additional enclosures. On facts, Commissioner (Appeals) had admitted additional evidences without complying to rule 46A, hence, impugned order of deleting additions on basis of such additional documents by Commissioner (Appeals) was unjustified, therefore, set aside the order of the ld CIT (A) and restore the appeal to his file to the first appellate stage with the direction that he should allow proper opportunity of hearing to the Assessing Officer as well as to the assessee and re-decide the appeal afresh in accordance with law. (Related Assessment year : 2009-10) – [ACIT v. Kandoi Transport Ltd. (2020) 185 ITD 358 : 120 taxmann.com 92 (ITAT Cuttack)]

Where Commissioner (Appeals) deleted addition made under section 68 by accepting fresh evidence submitted by assessee without providing Assessing Officer a reasonable opportunity of examining said evidence and rebutting it, there being violation of sub-rule (3) of Rule 46A of Income-tax Rules, 1962, impugned order was to be set aside

Pursuant to search proceedings, assessee filed its return wherein certain amount was shown as share application money. On account of assessee’s failure to submit documentary evidence in support of amount so received, Assessing Officer added same to assessee’s taxable income under section 68. Commissioner (Appeals) taking into consideration certain additional evidence produced by assessee, deleted addition made by Assessing Officer. It was found that Commissioner (Appeals) in violation of sub-rule (3) of Rule 46A, accepted fresh evidence without providing Assessing Officer a reasonable opportunity of examining said evidence and rebutting it. In view of a foresaid, impugned order passed by Commissioner (Appeals) was to be set aside and, matter was to be remanded back to Assessing Officer for disposal afresh. [In favour of revenue/Matter remanded] (Related Assessment year : 2010-11) – [DCIT v. Genex Industries Ltd. (2019) 178 ITD 855 : 109 taxmann.com 402 (ITAT Chandigarh)]

Where in course of appellate proceedings, Commissioner (Appeals) deleted addition of interest after considering additional evidence produced by assessee under Rule46A of 1962 Rules without granting an opportunity of hearing to AO, impugned order passed by him was to be set aside

During assessment proceedings, Assessing Officer made addition to assessee’s income on ground that interest component was not included in closing work-in-progress. Commissioner (Appeals) considering additional evidence filed by assessee under Rule46A of 1962 Rules, granted relief in terms of section 36(1)(iii). Since Commissioner (Appeals) had granted relief on altogether different premises from that of Assessing Officer, only recourse available to him was to grant an opportunity of hearing to Assessing Officer before deleting addition. Therefore, impugned order was to be set aside and, matter was to be remanded back to Commissioner (Appeals) to decide issue in proper perspective in accordance with law. [Matter remanded] (Related Assessment year :  2013-14) – [DCIT v. Jain Housing (2019) 178 ITD 814 : 109 taxmann.com 428 (ITAT Chennai)]

Where High Court had not taken into consideration issue of powers of Commissioner (Appeals) under rule 46A specifically raised before it, remedy for assessee would be to file an application for review of order of High Court

Assessee, on appeal filed against order of High Court, contended that issue of powers of Commissioner (Appeals) under rule 46A was specifically raised before High Court and it had not been taken into consideration by High Court. If indeed such issue was raised specifically before High Court and it had not been taken into consideration by High Court while passing impugned order, appropriate remedy for assessee would be to file an application for review of said order. [Partly in favour of assessee] – [Mathur Marketing (P) Ltd. v. CIT, Delhi (2018) 400 ITR 26 : (2017) 299 CTR 461 : 251 Taxman 3 : 86 taxmann.com 153 (SC)]

Where additional evidences filed under rule 46A was relevant for calculation of real income of assessee, same was to be admitted

Before the Commissioner (Appeals), the assessee filed an application under section 250, read with rule 46A of the Income-tax Rules, 1962. The said application was not admitted by the Commissioner (Appeals) holding that the assessee was given various opportunities to produce books of account and thus his case was not covered under rule46A of the Rules. The Commissioner (Appeals), dismissed the appeal.

On appeal, the Tribunal directed the Commissioner (Appeals) to admit additional evidence and decide the case afresh after affording reasonable opportunity to the assessee of being heard by holding that to deliver natural justice despite the non-co-operative attitude of the assessee towards assessment proceedings, real income was to be assessed. On appeal to the High Court:

The matter was examined by the Tribunal in detail on the basis of the entire material available on record. It was noticed by the Tribunal that the assessment was completed under section 144 as the assessee did not co-operate in assessment proceedings. On account of sickness of the assessee, he wanted to file additional evidence under rule 46A of the rules before the Commissioner (Appeals). It has been recorded by the Tribunal that no doubt the assessee did not co-operate with the Assessing Officer in completion of the assessment proceedings and that the books of account etc were not produced inspite of opportunity but the said evidence might have been relevant for the calculation of the real income of the assessee. The Tribunal keeping in view the overall facts and circumstances of the case rightly directed the Commissioner (Appeals) to admit additional evidence and decide the case afresh after affording reasonable opportunity to the assessee of being heard.

In view of the above facts and circumstances, there is no doubt assessee did not co-operate with the Assessing Officer in completion of assessment proceedings but the fact remains that in the delivery of justice the real income of assessee has to be assessed and that too after hearing the assessee. The Commissioner (Appeals) has not commented upon the nature of evidence filed under rule46A. Such evidence might have been relevant for the calculation of real income of the assessee, therefore, in view of the substantial justice, Commissioner (Appeals) was directed to admit additional evidence and decide the case afresh after affording a reasonable opportunity to the assessee of being heard. [In favour of assessee] – [PCIT v. Daljit Singh Sra (2017) 247 Taxman 240 : 80 taxmann.com 271 (P&H)]

Where assessee due to his wife’s illness was prevented from producing evidences before Assessing Officer in support of its claim, Commissioner (Appeals) could not refuse to admit such evidences for want of an appropriate application under rule 46A

The tax administration cannot be expected to be so divorced from the realities that the pains and agonies of an ill-informed tax illiterate person cannot be heard and understood. The pain of such a taxpayer is further compounded by factors beyond his control, as in the facts of the present case, where the counsel entrusted to represent him was also an equal 'novice' as admittedly being ignorant of the rules and procedures under which additional evidence could have been produced he failed to exercise due care and attention. The tax collected on the foundation of the ignorances of a 'tax illiterate taxpayer' cannot be termed to be a collection of either 'just' nor 'due' taxes collected by the State in accordance with law. It is viewed that the assessee represented by an equally ignorant counsel, should have been appropriately guided by the First Appellate Authority. The fact that the Commissioner (Appeals) while exercising his discretion refused to admit evidence inspite of sufficient cause being shown as a matter of record is unwarranted and arbitrary. It cannot be ignored that First Appellate Authority also had a duty to discharge, i.e., to ensure that only just and fair taxes due to the ‘State’ may be collected. While adjudicating and determining the issues, it cannot be countenanced that the Adjudicating Authority is afraid to give appropriate directions. In a case like the instant case such a direction could not have been perceived to be not given on account of the fear of being considered a negative reflection on the 'fair' conduct of the Commissioner (Appeals). The performance and discharge of duties would not be said to be found wanting or faulted with if the Commissioner (Appeals) in the performance of his duty apprises and grants opportunity to the assessee to meet the requisite procedural requirements of rule 46A. The Commissioner (Appeals) sitting in an authoritative adjudicating position necessarily would have complete knowledge of the Income-tax Act and rules. He is presumed to have more than adequate experience and should have been inculcated with a sense of public service to give the benefit of his learning to a disadvantaged taxpayer by putting him to notice in case of violation of procedure, as in the instant case that any evidence not made available to the Assessing Officer requires that an application seeking fresh evidences under rule 46A with reasons for their admission is necessary. Any such opportunity to produce fresh evidence under rule 46A given during the proceedings to my mind, would not in any way reflect on his impartiality. If fresh evidence is being relied upon by an assessee before the First Appellate Authority without any appropriate applications under rule46A, it would be arbitrary to deny the taxpayer an opportunity to produce the same as per law.

The prayer that the evidences could not be placed before the Assessing Officer because of pre-occupation of the assessee with illness of his spouse is a consistent fact on record. The explanation offered which though reproduced has not been rebutted by the Commissioner (Appeals) considering the material available on record, is accepted and the fresh evidences are directed to be admitted. A marginal taxpayer, as in the present case, battling with unforeseen and unfortunate circumstances of the illness of a life partner and further disadvantaged by lack of proper legal advise, should have been assisted instead of being trampled heartlessly in the name of technicalities. The technicalities can co-exist with a humane approach. There is an urgent need to inculcate a sense of public service and humane approach in the tax administration and to ensure that the marginal taxpayers are encouraged, assisted and guided on procedural requirements by the tax authorities with sound advise instead of instilling in them a sense of fear and panic and thus forcing them away from tax compliances and in the arms of unsavoury advisors who thrive and prey on this fear of the population. Such positive steps to my mind will go a long way in ensuring a tax compliant population. 

Accordingly, on a consideration of the facts, circumstances and material available on record, it is viewed that since in the facts of the present case due to his wife’s illness the assessee was prevented by sufficient cause from producing the evidences in support of its claim, it would be appropriate and in the interests of justice that in the peculiar facts and circumstances of the case, the impugned order is set aside and the issue is restored back to the Commissioner (Appeals) with a direction to permit the assessee to produce the evidences in support of its claim. The Commissioner (Appeals) after confronting the same to the Assessing Officer and directing the Assessing Officer to file a remand report shall confront the same to the assessee and thereafter pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. . [In favour of assessee] (Related Assessing Year : 2011-12) [Padam Lal Dua v. ITO, Faridabad (2017) 162 ITD 524 (2016) 76 taxmann.com 354 (ITAT Delhi)]

Even if additional evidence produced by assessee are in nature of clinching evidence leaving no further room for any doubt or controversy, Commissioner (Appeals) is under statutory obligation to put additional material/evidence taken on record by him to Assessing Officer

Reading of the finding of the Tribunal would suggest that according to it, if additional documents are summoned by the Commissioner (Appeals) and produced or if the additional evidence produced by the assessee are in the nature of clinching evidence leaving no further room for any doubt or controversy, it is not necessary to give an opportunity to the Assessing Officer to contradict the same. In other words, the finding of the Tribunal would suggest that in cases where documents are summoned by the Commissioner (Appeals) and in cases where the documents produced are conclusive, the principles of natural justice are excluded. These findings of the Tribunal could not be enclosed. As held by Delhi High Court in CIT v. United Towers (I.) (P) Ltd. (2008) 296 ITR 106 : 172 Taxman 267 (Del.), rule 46A(4) of the Rules does not specifically exclude the principles of natural justice and, therefore, these principles are to be read into the Rules. Therefore, the finding of the Tribunal set aside. [In favour of revenue] – [CIT, Trichur v. E.D. Benny (2016) 283 CTR 212 : (2015) 234 Taxman 802 : 62 taxmann.com 302 (Ker.)]

Where Assessing Officer had disallowed assessee’s claim for exemption under section 10A and, on appeal, assessee, in support of its claim, furnished various documents and Commissioner (Appeals) after considering said documents and without bringing same to notice of Assessing Officer allowed claim for exemption, matter required to be remanded to Commissioner (Appeals) for passing a fresh order after providing said documents to Assessing Officer

Assessing Officer passed a best judgment assessment order under section 144 on assessee and disallowed its claim for exemption under section 10A. Assessee, in support of its claim, furnished before Commissioner (Appeals) various documents - Commissioner (Appeals) after considering said documents allowed claim for exemption. He did not bring said documents to notice of Assessing Officer. Documents furnished by assessee before Commissioner (Appeals) could not be entertained by him except on fulfillment of following conditions: recording reasons in writing for receiving such evidence and giving Assessing officer an opportunity to examine documents. Matter required to be remanded back to Commissioner (Appeals) for passing a fresh order after providing said documents to Assessing Officer and giving him an opportunity of being heard. [In favour of revenue/Matter remanded] (Related Assessment year : 2010-11) [CIT v. NE Technologies India (P) Ltd (2016) 237 Taxman 151 : 65 taxmann.com 180 (AP)]


Since admission of additional evidence is prerogative of Commissioner (Appeals) and revenue was not able to point out as to which of conditions had been violated in process of adjudication by Commissioner (Appeals), order of Commissioner (Appeals) was to be held as valid

Assessee filed return of income and declared a loss of Rs. 66.32 lakhs. Assessing Officer held that assessee had an income of Rs. 79.50 lakhs and levied tax thereon. In support of its contention, assessee placed some additional material/evidence before Commissioner (Appeals). Taking same into account, Commissioner (Appeals) partly allowed appeal and permitted certain deduction. Revenue contended that Commissioner (Appeals) ought to have afforded an opportunity to Assessing Officer before admitting fresh evidence. It was noted that opportunity to be given to Department is only in context of ‘taking into account additional evidence’ but not ‘admitting additional evidence. Since admission of additional evidence is prerogative of Commissioner (Appeals) and Revenue was not able to point out as to which of conditions had been violated in process of adjudication by Commissioner (Appeals), order of Commissioner (Appeals) was to be held as valid. [In favour of assessee] (Related Assessment year : 1998-99) – [CIT v. Unique Plastics (P) Ltd. (2015) 373 ITR 201 : 60 taxmann.com 481 (Andhra Pradesh and Telangana)]

Where Assessing Officer sought one month time for due verification of additional evidence produced by assessee by stating that he was on election duty and number of cases of assessment in which time limitation was going to expire was pending, Commissioner (Appeals) should accept his demand

In the case where the CIT(A) is convinced about reasonable cause then, he has to follow a procedure contemplated under rule 46A(3) by providing sufficient opportunity to the Assessing Officer to examine the evidence or document or to cross-examine the witnesses, as the case may be.

It is not in dispute that additional evidence filed by the assessee could not be verified by the Assessing Officer because, he was engaged in the time bound matters involving more than 140 block assessments and also to the fact that he had been assigned the duties of expenditure in the UP. State Election in Ghaziabad Constituency by the Election Commission of India and, therefore, it was practically impossible for him to offer the comments on the aforesaid additional evidence and, therefore, he sought one month further time for due verification of the same. The aforesaid facts are not disputed by the learned authorities nor by the assessees.

In the case in hand, the reasons assigned by the Assessing Officer for asking for further time to verify the documents filed by the assessee was bona fide as he was on election duty and number of cases of assessment in which limitation was going to expire was pending and, therefore, Assessing Officer was busy and thus, the reason assigned by him for asking more time was sufficient. He was prevented by sufficient cause from submitting the report. The learned CIT(A) as well as learned Tribunal have not been able to consider these relevant facts in their correct perspective before passing the impugned order. The discretion exercised by the CIT(A) while refusing to grant further time to admit the additional evidence has not been based on sound judicial principles. The assessing authority had given satisfactory explanation and sufficient cause for not verifying the additional evidence filed before the appellate authority. The authorities ought to have granted some reasonable time to the Assessing Officer to verify the additional evidence.

On due consideration of the aforesaid, we are of the view that learned CIT(A) as well as learned Tribunal erred in proceeding with the matter and admitting the additional evidence filed by the assessee without granting further time to verify the same and submit a report. Thus, we set aside the impugned orders passed by the Tribunal, by answering the question of law in favour of the appellant/Department and remit the matter back to the learned CIT(A) with a direction that sufficient time be granted to the Department to verify the documents and rebut that evidence and thereafter decide the controversy afresh in accordance with law, as early as possible, and endeavour shall be made to conclude it within a period of six months from the date of receipt of certified copy of the order. [In favour of revenue] (Related Assessment years : 2003-04 to 2009-10) – [CIT v. Essence Commodities Ltd. (2015) 274 CTR 413 : 233 Taxman 564 : 114 DTR 393 : 61 taxmann.com 87 (MP)]

Where Commissioner (Appeals) exercised only overriding power under rule 46A(4) in considering documents furnished by assessee and found investment proper, Assessing Officer was not justified in submitting that he did not get opportunity to consider same

Assessing Officer made addition on ground that assessee did not explain source of investment.  Commissioner (Appeals) had gone through balance sheet, bank account and explanation furnished by assessee. Accordingly, he held investment justified’ Assessing Officer sought to assail order that Commissioner (Appeals) at time of considering new evidences, did not give opportunity to Assessing Officer to meet same’. In our view the said submissions are not based upon a correct reading of Rule46A of the Income Tax Rules as Sub-Rule (4) contained therein is an overriding power since it is a non obstante clause beginning with “nothing contained in this Rule”. Thus, the power of the appellate authority clearly overrides the provisions of Sub-Rules (1), (2) and (3) of Rule 46 A and it is open to the said authority to look into any additional document if it considers the same as required to dispose of the appeal or for any other substantial cause. As a matter of fact, the principal reason for the CIT (Appeals) in allowing the appeal was the fact that the Assessing Officer had failed to issue specific notice with regard to the investment of Rs. 8 lacs made in M/s Rajesh Corporation Limited and further, he has come to the conclusion that Rs. 8 lacs was fully explained on the basis of balance sheet filed during assessment proceeding itself. It was only to further verify the statements in the balance sheet that he had additionally called for the bank statements to verify the said transaction of Rs. 8 lacs which had resulted in the balance sheet showing NIL in the account of M/s Sagar Sahkari Grih Nirman Samiti Limited in the assessment year in question. Thus, it was a clear cut case of exercise of the overriding power under Rule 46A(4) of the Rules and not really a case of permitting an assessee to file fresh document on the prayer of the assessee. Hence, submission of Assessing Officer was not acceptable. Addition as unexplained investment was to be deleted. [In favour of assessee] (Related Assessment year : 1997-98) – [CIT(C) v. Sagar Construction (P) Ltd. (2015) 56 taxmann.com 434 (Pat.)]

Where Commissioner (Appeals) allowed assessee to produce additional evidence after calling remand report and permitting Assessing Officer to comment on such additional evidence, said order of Commissioner (Appeals) did not require any interference

In course of assessment, notice of hearing issued by Assessing Officer was received by assessee on date of hearing itself. Assessee thus could not produce necessary evidence on such date. Subsequently, when assessee attended office of Assessing Officer with necessary evidence, he learnt that order of assessment was already passed. In such circumstances, Commissioner (Appeals) permitted additional evidence to be produced before him and while doing so, he also called remand report from Assessing Officer. On facts, admission of additional evidence could not be stated to be in breach of requirement of rule 46A particularly when interest of revenue was safeguarded by calling for remand report and permitting Assessing Officer to comment on such additional evidence. [In favour of assessee] – [CIT v. Kamlaben Sureshchandra Bhatti (2014) 367 ITR 692 : 44 taxmann.com 459 (Guj.)]

Where in course of appellate proceedings, revenue raised a plea that Commissioner (Appeals) wrongly considered additional evidence without following procedure laid down under Rule 46A of Income-tax rules, 1962, in view of fact that such an objection was not raised before Tribunal, it could not be entertained for first time before High Court

Neither from the record nor from any other source, it could be pointed out that any objection was raised before Tribunal with regard to adducement of additional material before CIT(A). It also does not appear that any order had been insisted upon and was not granted.

It appears that from the first time such ground is raised before us, even otherwise both the Questions which are raised before us and which are held to be pre-dominantely factual in nature are based on sufficient material available from the order of Assessing Officer. Again CIT(Appeals) and ITAT have concurrently held against Revenue, in the aforementioned background, we do not find it necessary to interfere. Hence, this Tax Appeal is dismissed. [In favour of assessee] – [CIT v. Jignesh Dhanpal Sheth (2014) 223 Taxman 12 : 42 taxmann.com 413 (Guj.)]

Where Commissioner (Appeals) before admitting fresh evidence, had called for remand report from Assessing Officer and full opportunity was provided to both parties, no interference with Commissioner (Appeals)’s order was called for

In scrutiny assessments, various additions were made to assessee’s income. On appeal, Commissioner (Appeals) admitted fresh evidence and deleted said addition. Department submitted that admission of fresh evidence was in breach of rule 46A. Since remand report was obtained by Commissioner (Appeals) from Assessing Officer and fullest opportunity was provided to both sides, there was no violation of rule 46A and, Commissioner (Appeals) was justified in its decision. [In favour of assessee][CIT v. Dharamdev Finance (P) Ltd. (2014) 43 taxmann.com 395 (Guj.)]

Unless and until Assessing Officer is given an opportunity to cross-examine witnesses who are examined during pendency of appeal in exercise of powers under sub-rule (4) of rule 46A of 1962 Rules, Commissioner (Appeals) cannot rely upon statements/depositions of such witnesses, as it would be in violation of principles of natural justice

Considering sub-rule (4) of rule 46A of 1962 Rules, it is always open for the Commissioner (Appeals) to direct production of any document or examination of any witness to enable him to dispose of the appeal. However, while exercising such powers and examining any witness, who are permitted to be examined in exercise of the powers under sub-rule (4) of rule 46A, Assessing Officer is required to be given an opportunity to cross-examine such witness. Unless and until the Assessing Officer is given an opportunity to cross-examine such witnesses who are examined during the pendency of the appeal in exercise of the powers under sub-rule (4) of rule 46A, Commissioner (Appeals) cannot rely upon the statements /depositions of such witnesses, as it would be in violation of the principles of natural justice. The Commissioner (Appeals) having relied upon the statements of those 24 investors recorded by the Inspectors, deleted addition made by the Assessing Officer, without giving any opportunity of being heard to the Assessing Officer to cross-examine those 24 investors and therefore, the same is in violation of rule 46A of the Income Tax Rules, 1962, and therefore, the order passed by the Commissioner (Appeals) cannot be sustained. The Tribunal has materially erred in dismissing the appeal preferred by the revenue and confirming the order passed by the Commissioner (Appeals) and not permitting the revenue to raise additional ground of violation of Rule 46A. In view of the above, without further entering into the merits of the case and solely on the ground that the order passed by the Commissioner (Appeals) is in breach of violation of rule 46A of the Income Tax Rules, 1962, the order passed by the Commissioner (Appeals) as well as by the ITAT deserve to be quashed and the matter is remanded to the Commissioner (Appeals) to decide and dispose of the appeal afresh in accordance with law. [In favour of revenue] - [CIT v. Pradyuman M. Patel (2014) 41 taxmann.com 405 (Guj.)]

Where despite surrender of amount before Assessing Officer, assessee filed appeal before Commissioner (Appeals) producing additional evidence, Commissioner could not admit additional evidence without following mandate in terms of rule 46A

During course of assessment proceedings Assessing Officer asked assessee to submit complete details of sundry creditors along with their confirmations. Assessee expressed its inability to furnish further confirmations nor did it produce creditors for cross-examination and ultimately offered amount to tax. Despite surrender, assessee preferred appeal before Commissioner (Appeals) and submitted additional evidence. Commissioner (Appeals) admitted additional evidence. Commissioner (Appeals) was not justified in admitting additional evidence without ascertaining as to whether or not assessee was prevented by sufficient cause from submitting aforesaid additional documents/information before Assessing Officer as per provisions of rule 46A. Therefore, issue was to be restored back with directions to follow mandate in terms of rule 46A. [Matter remanded] (Related Assessment year 2008-09) – [ACIT v. Nirula Handicrafts Bazar (P) Ltd.  (2013) 56 SOT 97 : (2012) 28 taxmann.com 225 (ITAT Delhi)]

Where assessee filed an application under rule 46A, Commissioner (Appeals) must dispose of the application by way of a reasoned order and thereafter proceed to dispose of appeal on merits

In course of assessment, Assessing Officer found that assessee had deposited certain amount in a bank. Assessee’s case was that said deposit had come from sale of agricultural income - Assessing Officer did not accept assessee’s explanation because no evidence was produced to support such claim. Accordingly Assessing Officer treated investment as undisclosed and added same to income of assessee. On appeal, Commissioner (Appeals) deleted said addition. On revenue's appeal, it was noted that assessee had made application under rule 46A of Income-tax Rules, 1962 before Commissioner (Appeals) in backdrop of fact that he did not have sufficient time to produce evidence before assessing authority. Commissioner (Appeals) without disposing of said application, accepted additional evidence brought on record and deleted addition. Application of assessee made under rule 46A was required to be disposed of first before Commissioner (Appeals) heard appeal and decided same on merits. Since Commissioner (Appeals) failed to do so, impugned order passed by him was to be set aside and, he was to be directed to first dispose of assessee’s application made under rule 46A by way of a reasoned order in terms of sub-rule (2) of rule 46A and thereafter proceed to dispose of appeal on merits. [Matter remanded] – [ACIT v. Mohar Singh (2012) 49 SOT 129 : (2011) 16 taxmann.com 37 (ITAT Jodhpur)] 

No contravention of Rule 46A if CIT(A) sends document submitted by Assessee for Remand Report

There is no cogency in the ground raised by the Revenue that Ld. CIT(A) has not duly afforded adequate opportunity to the Assessing Officer to consider the submissions and evidences filed before him at the appellate stage. The Ld. CIT(A) has duly sent the documents furnished by the assessee at the appellate stage to the Assessing Officer for a remand report. Under the circumstances, there cannot be any issue that Assessing Officer was not provided adequate opportunity in this regard. Ld. Departmental Representative in this regard fairly agreed that the contravention of Rule 46A does not arise in this case, as the Assessing Officer has been provided with adequate opportunity and the remand report obtained from him. In this view of the matter, we do not find any infirmity in the order of the Ld. CIT(A). Accordingly, we uphold the same. (Related Assessment year : 2006-07) – [ITO v.  Bhavya Lakhani Traders & Suppliers (P) Ltd. – date of Judgement : 16.10.2012 (ITAT Delhi)]

Admitting Additional Evidence without calling for Remand Report violates Rule 46A

We find that certain fresh documents have been produced before CIT(A) and CIT(A) without calling for remand report or confronting such material to the Assessing Officer has passed the impugned order in a very precise manner to delete the impugned addition which is not justified. So, action of the CIT(A) is not only violate of Rule 46A of the Income Tax Rules, but also against the natural justice because sufficient and cogent reasons have not been given in this case. Therefore, considering the entirety of facts, circumstances and material on record, we set aside the order of the CIT(A) and restore the matter back on his file with the direction to re-decide the appeal afresh after giving due opportunity to the assessee as well as to the Assessing Officer by passing a speaking order giving cogent reasons in support thereof. (Related Assessment Year : 2007-08)- [ACIT v. Late Avtar Singh Bahl – Date of Judgement : 21.06.2012 (ITAT Delhi)] 

If Assessing Officer objects to Admission of Additional Evidence, then CIT(A) should give categorical finding in terms of Rule 46A for admission thereof

In our considered view, CIT(A) has admitted the additional evidence without fulfilling the categorical conditions laid down in Rule 46A, as explained by Hon’ble Delhi High Court in the case of CIT v. Manish Build Well (P) Ltd. (2011) 63 DTR 369 (Del.) wherein their lordships held that after admission of additional evidence, it is mandatory to follow Rule 46A(3) of the Income Tax Rule. Consequently, his order on this issue is not tenable; however, the issue of merits remains. Besides, from the record it emerges that the assessee wanted to file only government records and revenue record about crops. In the entirety of facts and circumstances, the interest of justice will be served if the matter is set aside, restored back to the file of Assessing Officer to decide the same afresh after affording the assessee sufficient opportunity of being heard.[ITO v. Kuber Chand Sharma – Date of Judgement : 13.02.2012 (ITAT Delhi)]

CIT(A) should admit the additional evidence if he finds that the same is crucial for the disposal of the appeal

While completing the assessment of the assessee, the Assessing Officer made additional by disallowing the loss claimed by the assessee on account of sale of shares of ‘D’ Ltd. and on account of expenses debited to the profit and loss account under section 41(1). Before the Commissioner (Appeals), the assessee produced requisite material, though for the first time justifying both claims. The Commissioner (Appeals) called for a remand report from the Assessing Officer and thereafter deleted the addition, inter alia, observing that the Assessing Officer, in his remand report, had not specifically commented upon the additional evidence submitted by the assessee. The Tribunal upheld the order of the Commissioner (Appeals).

Held that it was a matter of record that before admitting the additional evidence, the Commissioner (Appeals) had obtained a remand report from the Assessing Officer. While submitting his report, the Assessing Officer had not objected to the admission of the additional evidence, but had merely reiterated the contentions in the assessment orders. It was only after considering the remand report, the Commissioner (Appeals) had admitted the additional evidence. It could not be disputed that this additional evidence was crucial to the disposal of the appeal and had a direct bearing on the quantum of claim made by the assessee. The plea of the assessee which was taken before the Assessing Officer remained the same. The Assessing Officer had taken adverse note because of non-production of certain documents to support the plea and it was in these circumstances, the additional evidence was submitted before the Commissioner (Appeals). It could not be said nor was it the case of the revenue that additional evidence was not permissible at all before the first appellate authority. On the contrary, rule 46A of the Income-tax Rules permits the Commissioner (Appeals) to admit additional evidence if he finds that the same is crucial for disposal of the appeal. In the facts of the instant case, therefore, no substantial question of law arose. [In favour of assessee] – [CIT v. Virgin Securities and Credits (P) Ltd. (2011) 332 ITR 396 : (2012) 20 taxmann.com 681 (Del.)]  

After admission of additional evidence, it is mandatory to follow Rule 46A(3) of the Rule

It was held that after admission of additional evidence, it is mandatory to follow Rule 46A(3) of the Rule. However, sub-rule (3) which interdict the CIT (A) from taking into account any evidence produced for the first time before him unless the Assessing Officer has had a reasonable opportunity of examining the evidence and rebut the same, has not been complied with. There is nothing in the Order of the CIT (A) to show that the Assessing Officer was confronted with the confirmation letters received by the assessee from the customers who paid the amounts by cheques and asked for comments. Thus, the end result has been that additional evidence was admitted and accepted as genuine without the Assessing Officer furnishing his comments and without verification. Since this is an indispensable requirement, we are of the view that the Tribunal ought to have restored the matter to the CIT (A) with the direction to him to comply with subrule (3) of Rule 46A. – [CIT v. Manish Build Well (P) Ltd. (2011) 63 DTR 369 (Del.)]

Rule 46A(3) is a mandatory provision and non-compliance of same would vitiate order itself - Where assessee had produced additional evidence before Commissioner (Appeals) not on direction of Commissioner (Appeals) but by itself and Commissioner (Appeals), on being satisfied with assessee’s explanation regarding non-production of that evidence before Assessing Officer, had permitted assessee to lead evidence in terms of sub-rule (3) of rule 46A, he was bound to give an opportunity to Assessing Officer to examine documents and to produce any evidence to contrary, if he so desired

The Assessing Officer, as a result of non-appearance of the assessee before him on the date fixed for hearing, framed its assessment under section 144 and made certain addition to its income. The assessee filed an appeal before the Commissioner (Appeals) and produced books of account and other materials in support of its claim. The Commissioner (Appeals) accepted the material filed by the assessee to be correct and allowed its appeal. The revenue filed an appeal before the Tribunal contending that even if evidence was permitted to be adduced by the assessee at the appellate stage, the Assessing Officer should have been given an opportunity to verify/rebut the evidence. The Tribunal rejected the submission of the revenue on the ground that rule 46A does not warrant giving of any opportunity to the Assessing Officer. It also held that the power to admit additional evidence under section 250 could not be circumscribed by rule 46A. On the revenue’s appeal to the High Court :

Held : A bare perusal of the provisions of section 250(4) shows that the Commissioner (Appeals), at the time of hearing of the appeal, can make such further inquiry as he deems fit and may ask the Assessing Officer to make such an inquiry. This provision in the Act vests in the appellate authority the power to make further inquiry which would include the power to admit further evidence.

The procedure and the manner in which additional evidence is to be produced is laid down in rule46A. Rule 46A(1) lays down the grounds on which the appellate authority can allow additional evidence. Sub-rule (2) provides that the appellate authority, while admitting such evidence, must record its reasoning in writing. Sub-rule (3) provides that no evidence produced under sub-rule (1) shall be taken into account unless the Assessing Officer is given a reasonable opportunity of examining the evidence or documents produced or is permitted to cross-examine the witnesses examined or is permitted to produce any evidence or document in rebuttal to the additional evidence produced by the assessee. Sub-rule (4) is more in the nature of suo motu power given to the appellate authority to direct the production of any document or witness to enable him to dispose of the appeal or for any other substantial cause. In the instant case, admittedly, the evidence was produced not on the direction of the Commissioner (Appeals) but by the assessee itself. Since the assessee could not produce that evidence because of its non-appearance before the Assessing Officer, which was explained by it satisfactorily before the Commissioner (Appeals), the Commissioner (Appeals) was justified in permitting the assessee to lead additional evidence. However, once he permitted the assessee to lead evidence in terms of sub-rule (3), he was bound to give an opportunity to the Assessing Officer to examine the documents and also give an opportunity to produce any evidence to the contrary if he so desired. This is also in accordance with the rule of natural justice. Further, the said provision is a mandatory provision and non-compliance of the same would vitiate the order itself. Hence, the impugned order of the appellate authorities deserved to be set aside and the matter was to be remanded to the Commissioner (Appeals) for decision afresh. (Related Assessment year : 1996-97) – [CIT, Shimla v. Shri Kangra Steel (P) Ltd. (2010) 320 ITR 691 : 231 CTR 413 : 188 Taxman 392 (HP)]

Proper reasons must be given for non-acceptance of additional evidence under rule 46A

It is not the case of the assessee, at this stage, that the Assessing Officer has not given sufficient opportunity; the case of the assessee is that the additional evidence produced before the CIT(A) ought to have been admitted under Rule 46A. If additional evidence is not admitted, the ld. CIT(A) ought to have furnished reasons for non-admission so that the assessee could explain properly as to whether the reasons for non-admission of additional evidence are in accordance with law or not. In the instant case, the ld. CIT(A) completely ignored to take notice of the additional evidence.Under these circumstances, we are of the view that in the interests of substantial justice the matter requires to be sent back to the CIT(A), who is directed to give the assessee a reasonable opportunity of heard. Suffice to say that the ld. CIT(A) should consider the additional evidence in accordance with law. If there are no justifiable reasons for admission of the additional evidence, the ld. CIT(A) has to pass a speaking order so that a superior forum can consider the correctness of the reasons mentioned therein. With these observations, the issue concerning the disallowance under section 68 of the Act, other than Rs.6,97,688/-, is hereby set aside to the file of CIT(A). (Related Assessment Year : 2005-06) – [Dinesh Khemabhai Patel v. ITO - Date of Judgement : 04.06.2010) (ITAT Mumbai)

Tribunal was correct, in law, in permitting the assessee-company to lead additional evidence in accordance with rule 46A

It appeared that the assessee wanted to lead additional evidence before the Commissioner (Appeals) but the request was declined. Against that view of the Commissioner (Appeals), the assessee approached the Tribunal which held that the Commissioner (Appeals) ought to have taken the additional evidence on record. No substantial question of law would arise for consideration out of that finding.

That apart, as a result of the Tribunal permitting the assessee to lead additional evidence, the matter was remanded to the file of the Assessing Officer and then, the Assessing Officer had, after taking the additional evidence on record, passed a fresh assessment order accepting the contention of the assessee on merits. The assessment order appeared to have been accepted by the revenue and, therefore, the entire exercise in that regard had become academic. Even otherwise, in R. Dalmia v. CIT (1978) 113 ITR 522 (Delhi), the High Court held that it is entirely for the Tribunal to decide whether to admit additional evidence or not. The Tribunal has a discretion for doing so and no question of law would arise if additional evidence was led, provided the Tribunal had not acted on any wrong principle.

Nothing had been shown to suggest that in the instant case, the Tribunal had acted on a wrong principle. Clearly, therefore, no substantial question of law would arise for consideration. (Related Assessment year : 2001-02) – [CIT v. Hewlett Packard India (P) Ltd. (2009) 314 ITR 55 : (2008) 173 Taxman 162 (Del.)]

Scope of powers of Commissioner (Appeals) is co-terminus with that of Assessing Officer and he is empowered to do what Assessing Officer can do and he has power to direct Assessing Officer to do what he has failed to do

It is well-settled that the powers of the Commissioner (Appeals) are not restricted and he has plenary powers to dispose of an appeal. The scope of his power is co-terminous with that of the Assessing Officer and he is empowered to do what the Assessing Officer can do and he has also power to direct the Assessing Officer to do what the Assessing Officer has failed to do. Thus, it will be within the power of the Commissioner (Appeals) to give directions while disposing of an appeal. (Related Assessment year : 2004-05) – [L. Dee’s v. ITO (2009) 120 ITD 138 (ITAT Delhi)]

Under Rule 46A(4), the CIT(A) on its own discretion can ask the assessee to produce documents or evidence. Additional evidence gathered by the CIT(A) on his own is not required to be produced before Assessing Officer for his comments. – [DCIT v. Thoresen Chartery Singapore (2009) 118 ITD 416 (ITAT Mumbai)]

Assessee sold some shares, held by him as an investment, to his wife at a loss, but his claim to set off said long-term capital loss against short-term capital gains was disallowed by Assessing Officer on ground that those shares were never transferred in name of assessee’s wife as per letter dated 06.12.2000 issued by Registrar and share transfer agent concerned’ On appeal, Commissioner (Appeals) admitting an additional evidence produced by assessee by way of a letter dated 16.03.1998 issued by said agent to show that those shares were actually transferred to assessee’s wife on 16.03.1998, allowed assessee’s said claim. Since sale price at which shares were said to be sold by assessee to his wife was as per market quotation on date of sale, no interference was called for with order of Commissioner (Appeals) on that issue. Since Assessing Officer had not given an opportunity to assessee before drawing adverse inference from letter dated 06.12.2000 of said agent, admission of additional evidence by Commissioner (Appeals) was as per exceptions in rule 46A. Therefore, order of Commissioner (Appeals) needed no interference. [In favour of assessee] (Related Assessment year : 1998-99) [DCIT v. Rajesh R. Gupta (2008) 20 SOT 171 (ITAT Mumbai)]

Where before assessing authority, assessee failed to adduce any sort of evidence to prove sale proceeds of utensils received by him but at appellate stage, appellate authority, without recording any valid or plausible reason and without giving any opportunity of hearing to revenue, allowed assessee to produce xerox copy of sale proceeds as additional evidence, appellate authority acted in violation of rule 46A

Appellant is not entitled to produce oral or documentary evidence afresh before appellate authority, as a matter of right. As per sub-rules (1), (2) and (3) of rule 46A if additional evidence is permitted to be produced, then firstly there must be reasons to be recorded in writing and, secondly, reasonable opportunity has to be given to assessing authority to refute and reject such production. Rule 46A(4) does not permit to do away with procedural law prescribed under sub-rules (1), (2) and (3) of rule 46A, once additional evidence is produced. Where before assessing authority, assessee failed to adduce any sort of evidence to prove sale proceeds of utensils received by him but at appellate stage, appellate authority, without recording any valid or plausible reason and without giving any opportunity of hearing to revenue, allowed assessee to produce xerox copy of sale proceeds as additional evidence, appellate authority acted in violation of rule 46A. (Related Assessment year : 1998-99)  [CIT v. Ranjit Kumar Choudhury (2007) 288 ITR 179 : 162 Taxman 257 (Gau.)

Under section 250(4), Commissioner (Appeals) is empowered and duty bound to make such further enquiry as he thinks fit or to direct Assessing Officer to make further enquiry if facts and circumstances of a case warrant such an enquiry to be made - Matters to be considered by Commissioner (Appeals) need not be confined to what was considered by Assessing Officer while making order appealed against - The fact that results of enquiries conducted supported case of assessee and not that of revenue has no bearing on jurisdiction and powers of Commissioner (Appeals) - Purpose of rule 46A is to place fetters on rights of an appellant to produce additional evidence before first appellate authority and not on rights of first appellate authority to call for production of any fresh evidence or information - Where additional evidence is obtained by first appellate authority on its own motion, there is no requirement, in law, that he should invariably consult/confront Assessing Officer with such additional evidence - If additional evidence furnished by assessee before first appellate authority is in nature of a clinching evidence leaving no further room for any doubt or controversy, in such a case no useful purpose would be served by forwarding evidence/material to Assessing Officer to obtain his report and in such exceptional circumstances, said requirement may be dispensed with

Having regard to the provisions of Part A of Chapter XX relating to the appeals before the first appellate authority, a distinction has to be made between the evidence and material voluntarily furnished by an assessee in support of his appeal and the evidence/material requisitioned from an assessee by the first appellate authority with a view to have proper disposal of proceedings before him. While the provisions of rule 46A apply to the former, the same have no application to the latter.

Provision of rule 46A enjoins upon the first appellate authority not to admit any fresh evidence unless he records in writing his reasons for its admission. Further, rule 46A enjoins upon him to provide the Assessing Officer with a reasonable opportunity to examine the fresh evidence or to cross examine the witness produced by the assessee or to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the assessee.

The provisions of section 250(4), on the other hand, empower the first appellate authority to make such further enquiry as he thinks fit or to direct the Assessing Officer to make further enquiry and report the result of the same. There are many judgments to the effect that in view of the provisions of section 250(4), the first appellate authority is duty bound to make an enquiry even if such an enquiry was not made by the Assessing Officer if the facts and circumstances of the case warrant such an enquiry to be made. It, therefore, follows that the matters to be considered by the first appellate authority need not be confined to what was considered by the Assessing Officer while making the order appealed against.

There are of course several judgments where it has clearly been laid down that the assessee on his own cannot produce any additional evidence not furnished before the Assessing Officer without meeting the various conditions provided under rule 46A for which satisfaction is to be recorded by the appellate authority in writing and with which the appellate authority is further required to confront the Assessing Officer and allow him a reasonable opportunity to have his say in the matter.

From the various authorities of courts, the legal position is that the first appellate authority has wide powers over the order of assessment appealed against before him. In the course of exercise of such power the first appellate authority can direct the assessee to produce any evidence, information or material that was not produced before or was not considered by the Assessing Officer. The purpose of rule 46A is to place fetters on the rights of an appellant to produce additional evidence before the first appellate authority and not on the rights of the first appellate authority to call for production of any fresh evidence or information. This aspect of the provisions of rule 46A is clear from the provisions of sub-rule (4) of rule 46A itself that nothing contained in rule 46A shall affect the power of the first appellate authority to direct the production of any document or to examine 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).

In the instant case, the entire additional evidence had come on the record of the Commissioner (Appeals) because he had decided to examine the facts of the case in depth and then adjudi- cate upon the matter on the basis of evidence and material, thus, gathered. The Commissioner (Appeals) was empowered to do so under the provisions of section 250(4). The result of enquiry conducted by him could either go to further cement the case made out by the Assessing Officer or to help out the assessee against the findings of the Assessing Officer. The mere fact that the results of the enquiries thus conducted supported the case of the assessee and not that of the revenue, it has no bearing on the jurisdiction and powers of the Commissioner (Appeals). The Commissioner (Appeals) could have confronted the Assessing Officer with the evidence thus received and the material thus gathered and allowed the Assessing Officer to have his say in the matter and perhaps had he done so the dispute in question would not have arisen. But there is no requirement, in law, that the Commissioner (Appeals) should invariably consult or confront the Assessing Officer every time an additional evidence that was not before the Assessing Officer comes on the record of the Commissioner (Appeals). Where the additional evidence is obtained by the first appellate authority on its own motion, there is no requirement, in law, to consult/confront the Assessing Officer with such additional evidence. There may be cases where additional evidence is admitted by the first appellate authority on a request or application made by the assessee. In such cases sub-rule (2) of rule 46A requires the first appellate authority to allow the Assessing Officer a further opportunity to rebut the fresh evidence filed by the assessee. Even that requirement cannot be said to be a rule of universal application. If the additional evidence furnished by the assessee before the first appellate authority is in the nature of a clinching evidence leaving no further room for any doubt or controversy, in such a case no useful purpose would be served by performing the ritual of forwarding the evidence/material to the Assessing Officer to obtain his report. In such exceptional circumstances the requirement of sub-rule (3) may be dispensed with.

Therefore, there was no infirmity in the impugned order of the Commissioner (Appeals) who had taken pains to comprehensively examine the issue before him and arrive at a correct finding of fact and he should be congratulated for having done so. Therefore, his order was to be upheld and the appeals were to be dismissed. (Related Assessment years : 1998-99 to 2000-01) - [ITO v. Industrial Roadways (2008) 112 ITD 293 : (2007) 112 TTJ 157 (ITAT Mumbai)]

Assessee, in an appeal against addition made by Assessing Officer, filed additional evidence before Commissioner (Appeals) - Commissioner (Appeals) called for a remand report on such evidence from Assessing Officer and after going through remand report, concluded that sufficient opportunities were granted to assessee and his case did not fall in any of exceptions available in sub-rule (1) of rule 46A - Commissioner (Appeals), therefore, refused to admit additional evidence and confirmed addition - After calling of remand report on merit as contemplated in sub-rule (3) of rule 46A, Commissioner (Appeals) was precluded with his discretion for refusing to admit additional evidence - Therefore, Commissioner (Appeals) had wrongly refused to admit additional evidence produced by assessee

The Assessing Officer made certain addition to the income of the assessee on account of unexplained cash credits available in the books of the assessee. On appeal, the assessee filed additional evidence under rule 46A, in order to explain the cash credits appeared in his books. The Commissioner (Appeals), after receiving the additional evidence, called for a remand report on such evidence from the Assessing Officer. In the remand report, apart from commenting on the merits, the Assessing Officer raised an objection for entertaining the fresh evidence under rule 46A. The Commissioner (Appeals), after going through the remand report, arrived at a conclusion that sufficient opportunities were granted to the assessee and his case did not fall in any of the exceptions available in sub-rule (1) of rule 46A. Thus, the Commissioner (Appeals) refused to admit the additional evidence and confirmed the addition. On second appeal :

From reading of rule 46A, it is discernible that sub-rule (1) contemplates certain conditions, which are required to be fulfilled by an assessee before permission to produce additional evidence can be granted to him. Such conditions are specified in clauses (a) to (d). Whenever any additional evidence is produced before the first appellate authority under the Act, the appellate authority, i.e., the Dy. Commissioner (Appeals) or the Commissioner (Appeals) would record reasons in writing for admitting such additional evidence, as per the requirement of sub-rule (2).

After permitting an assessee to adduce additional evidence, next stage would be that the Assessing Officer is to be granted an opportunity to examine the evidence or the documents or to examine the witness produced by the assessee. The Assessing Officer would further be at liberty to produce any other evidence in rebuttal of the additional evidence produced by the assessee. Thus, the first stage is that the assessee seeks permission for the admission of additional evidence, the next stage would be that such permission would be granted by recording reasons and thereafter, the additional evidence would be sent to the Assessing Officer for examination. In the instant case, though from the record, it was not discernible whether permission to adduce additional evidence was granted by recording reasons in writing, but impliedly it was discernible that after filing the additional evidence, the Commissioner (Appeals) took step provided in sub-rule (3). So it gave an inference that the additional evidence sought to be produced by the assessee was a relevant material and the Commissioner (Appeals) had entertained this additional evidence and only thereafter sent it to the Assessing Officer under sub-rule (3) for verification. Thus, after calling of the remand report on merit as contemplated in sub-rule (3) of rule 46A, the Commissioner (Appeals) was precluded with his discretion for refusing to admit the additional evidence. He could reject it as not sufficient or not proved but it was to be construed that evidence had been taken on record. Apart from all these things, sub-rule (4) of rule 46A, provides vast powers to the Commissioner (Appeals). He can exercise his discretion to enter any evidence even though the case of the assessee does not fall within the exceptions provided in clauses (a) to (d) of sub-rule (1). The moment Commissioner (Appeals) arrives at a conclusion that the evidence sought to be produced by the assessee is essential for the just decision of the appeal or for the substantial cause of justice, it is necessary to call such material on record. In that situation, interdiction provided in sub-rules (1) and (2) would not come in his way. Therefore, the Commissioner (Appeals) had wrongly refused to admit the additional evidence produced by the assessee and his order deserved to be set aside. Therefore, the said issue was restored to the file of the Assessing Officer for re-adjudication. (Related Assessment year : 1993-94)[Shahrukh Khan v. DCIT (2007) 13 SOT 61(ITAT Mumbai)]

Commissioner (Appeals) has power to examine fresh evidence himself, without conducting an enquiry through Assessing Officer - If matter is complex and voluminous evidence is required to be examined, better course for Commissioner (Appeals) would be to get evidence examined and decided by Assessing Officer instead of himself doing it, though he has power, in law, to do so himself - Assessing Officer made a substantial addition to income of assessee-company - Commissioner (Appeals) admitted fresh evidence furnished by assessee and after examining evidence himself, without conducting an enquiry through Assessing Officer deleted part of addition - Since amount of addition was very substantial and it involved considerable evidence, Commissioner (Appeals) ought to have remanded case to Assessing Officer for examining evidence and to decide issue accordingly

It would depend on the facts of each case as to whether the Commissioner (Appeals) should conduct the inquiry himself or should leave it to the Assessing Officer. If the matter is complex and voluminous evidence is required to be examined, the better course for the Commissioner (Appeals) would be to get the evidence examined and decided by the Assessing Officer instead of himself doing it, though he has the power, in law, to do so himself. In the instant case, the Commissioner (Appeals) had considered copious evidence which he had himself listed in his order. It would have been better if these details were to be verified by the Assessing Officer, as the Assessing Officer had all the paraphernalia and the infrastructure to get the evidence examined and verified and he would be in a better and more appropriate position to do so than the Commissioner (Appeals). In such matters, where a detailed enquiry is required, it would be more appropriate that the Assessing Officer is entrusted with the task instead of the Commissioner (Appeals) doing it all by himself. In the instant case, the amount of the addition was also very substantial, and it involved considerable evidence. Therefore, the Commissioner (Appeals) would have been justified if he had got the evidence verified by the Assessing Officer under section 250(4). Even with regard to the verification of the existence of the shareholders, the Commissioner (Appeals) appeared to have merely accepted the confirmatory letters in which the addresses and the income-tax file numbers of the shareholders were given. The Commissioner (Appeals) had not verified the income-tax records of the shareholders, nor had he verified it from the shareholders themselves by contacting them or summoning them. Thus, even with regard to the existence of the shareholders, it did not stand established beyond doubt merely by the confirmatory letters, unless they were subjected to further verification. That exercise had not been carried out by the Commissioner (Appeals). Since the instant case was not a simple case but a complex one, the Commissioner (Appeals) ought to have remanded the case to the Assessing Officer for examining the evidence and to decide the issue, accordingly.

Hence, the order of the Commissioner (Appeals) was to be set aside and the matter was to be restored to the file of the Assessing Officer with a direction to examine the evidence adduced by the assessee before the Commissioner (Appeals) and take a decision afresh. (Related Assessment year : 1999-2000) – [ACIT v. Prime Telesystems Ltd. (2007) 11 SOT 361 (Del.)]

Assessee in his accounts had shown that he had received loans during relevant year - Assessing Officer, however, did not accept same for want of confirmation letters from creditors, and, accordingly, made additions under section 68 - On appeal before Commissioner (Appeals), assessee produced confirmation letters - Commissioner (Appeals) rejected said additional evidence by holding that assessee’s case did not fall under any of exceptional circumstances mentioned in rule 46A - Appeal filed against said order was allowed by Tribunal - In view of sub-rule (4) of rule 46A and provisions of section 250, Commissioner (Appeals) was not justified in rejecting confirmation letters produced by assessee straightaway and he should have directed Assessing Officer to consider said confirmation letters and find out identity, creditworthiness, etc., of persons who had made fixed deposits

On a consideration of the provisions of rule 46A, particularly sub-rule (4) thereof and the provisions of section 250(1) conferring power on the Commissioner (Appeals), it is clear that in spite of the provisions of rule 46A(1), the provisions of section 250 enable the Commissioner (Appeals) to accept additional evidence in appropriate cases which power has been preserved by sub-rule (4) of rule 46A also. If the provisions of rule 46A, sub-rule (4) thereof are held to be mandatory that would go against the provisions of section 250 conferring power on the first appellate authority to enquire into the matter and pass appropriate orders. In other words, rule 46A without sub-rule (4) would be open to challenge as ultra vires section 250. [Para 5]

In the instant case, the first appellate authority, as already noted, had rejected the additional evidence solely on the ground that the assessee did not satisfy the provisions of rule 46A. The Tribunal had, however, considered the matter keeping in mind the provisions of sub-rule (4) of rule 46A and the provisions of section 250 though the provisions were not specifically mentioned and observed that the Commissioner (Appeals) was not justified in rejecting the confirmation letters straightaway and that he should have directed the Assessing Officer to consider the said confirmation letters and find out the identity, creditworthiness, etc., of the persons who had made the fixed deposit. It was in the above circumstances that the Tribunal directed the Assessing Officer to consider the two confirmatory letters produced by the assessee before the first appellate authority and to decide the question afresh. It must be noted that, neither the Assessing Officer, nor the first appellate authority had any case that the appellant was given several opportunities to produce the confirmation letters and that the assessee did not avail of the said opportunities by obtaining and producing the confirmation letters from the two persons mentioned above. Only reason stated was that no evidence was produced. In view of the above-mentioned circumstances, no reason was found to interfere with the order of the Tribunal in the instant issue. This Income-tax appeal is dismissed as above. - [CIT v. K. Ravindranathan Nair (2004) 265 ITR 217 : (2003) 184 CTR 46 : 131 Taxman 743 (Ker.)]

First appellate authority has to give his reason in writing for admission of additional evidence produced by assessee and further an opportunity must be given to Assessing Officer either to examine or rebut that evidence - Where additional evidence produced by assessee was received and relied upon without giving any reason as contemplated under sub-rule (2) of rule 45A and furthermore no opportunity was given as required under sub-rule (3) of rule 46A, order of Commissioner (Appeals) admitting such additional evidence was to be set aside

The assessee produced additional evidence before the Commissioner (Appeals). The Commissioner (Appeals), relying on that evidence, deleted the addition made by the Assessing Officer. On appeal, the revenue contended that the Commissioner (Appeals) did not record his reason in writing and further no opportunity was given to the Assessing Officer before taking into account the additional evidence, thereby violating the provisions of rule 46A.

Held : The first appellate authority has all the plenary powers for the purpose of disposal of the appeal before him. The first appellate authority can direct the production of any document or evidence by exercising his power under section 250(4) read with sub-rule (4) of rule 46A. Whenever that power of the Commissioner (Appeals) is exercised and the additional evidence is produced by the assessee before the first appellate authority, it has to be decided as per the principles laid down in sub-rule (1) of rule 46A and the first appellate authority has to give his reason in writing for admission of the aforesaid documents. Furthermore, the mandatory requirement under sub-rule (3) of rule 46A is that an opportunity must be given to the Assessing Officer either to examine these evidences or to rebut these evidences.

In the instant case, admittedly, the Commissioner had not exercised his power under sub-rule (4) of rule 46A. The additional evidence produced by the assessee was received and relied upon without giving any reason as contemplated under sub-rule (2) of rule 46A. Furthermore, no opportunity was given as required under sub-rule (3) of rule 46A. Notice of appeal cannot be equated with notion of future application to lead additional evidence which no one could have anticipated or reasonably foreseen. In view of the above discussion, it was very clear that the two documents produced by the assessee were additional evidences and the same were received by the first appellate authority in violation of rule 46A and also against the principles of natural justice behind the back of the Assessing Officer. Therefore, the order of the Commissioner (Appeals) was to be set aside and the matter was to be remanded back to the Assessing Officer to examine the issue and also the evidence produced by the assessee. (Related Assessment year : 1993-94) – [ITO (OSD) v. Dr. N.C. Doka

(2002) 82 ITD 275 : 76 TTJ 596 (ITAT Gauhati)]

 

Restrictions placed on an appellant by rule 46A to produce additional evidence do not affect powers of AAC under section 250 - As summons issued to creditors of assessee from whom assessee allegedly took loan were returned unserved, loan amount was treated as addition to income - Before AAC assessee sought to produce documentary evidence which was refused to be entertained - AAC should have admitted evidence in exercise of power under section 250(5) - Even otherwise case fell within rule 46A(1)(c)

In the instant case, the ITO treated the amount of two loans as income of the assessee from undisclosed sources because the summons issued by him could not be served on the creditors. At the time of hearing of the appeal against the above order before the AAC, the assessee wanted to prove the genuineness of the loan from one of the borrowers by relying upon the fact that the amount had been received by the assessee by cheque and repaid by cheque. In support of this contention, the assessee wanted to produce photostat copies of the cheques and a certificate from the bank to show that the sum was received by the assessee from the creditor by cheque and a copy of the account of the assessee with the said bank. Prima facie, this information was necessary to decide the controversy in regard to the genuineness of the loan.

The AAC should have considered this evidence in exercise of his powers under sub-sections (4) and (5) of section 250 which he failed to do. Thus, it was a fit case where the AAC should have exercised the powers conferred upon him and taken on record the zerox copies of the cheque, the certificate from the bank and the copy of the account of the assessee with the said bank and considered the same for deciding the genuineness of the loan.

In the facts and circumstances of this case, even under rule 46A the assessee should have been allowed to produce the additional evidence. The AAC, thus, was not correct in holding that the case of the assessee did not fall in any of the four exceptions set out in sub-rule (1) of rule 46A. In fact, the present case would fall under clause (c) of sub-rule (1) of rule 46A because the assessee had no occasion to collect this evidence earlier. He would have reasonably expected that the creditors will appear before the ITO in compliance with the summons issued by him. He was never informed by the ITO that the creditors were not available or identifiable. If he had been informed by the ITO in the course of assessment proceeding that he was not inclined to accept the loans as genuine because of the non-availability of the creditors, he could have tried to satisfy him about the genuineness of the loan by producing other evidence. The case was remanded to examine the genuineness of the loan afresh in the light of the evidence produced by the assessee. [In favour of the assessee] – [Smt. Prabhavati S. Shah v. CIT (1998) 231 ITR 1 : 148 CTR 192 : 100 Taxman 404 (Bom.)]

Assessing Officer in ex parte assessment under section 144 made additions to assessee’s total income for not explaining deposits made under sections 80CCA and 80CCB and also on account of low household withdrawals - Under section 250(4), Commissioner (Appeals) has ample power and jurisdiction to take additional evidence necessary for disposal of appeal, and, thus, in instant case, discretion was properly exercised by him - Assessee could make above mentioned deposits from his income, and ‘for want of details’, conclusion that investments were not made out of taxable income of the year could not be reached - Commissioner (Appeals) having found that rental income from HUF account was available to assessee to meet household expenses, addition on this account was rightly deleted by him

It is settled law that even an ex parte assessment made under section 144 must conform to rules of justice, equity and good conscience and cannot be arbitrary and capricious. There may be some guess-work, but still there should be some nexus between the material available on record and the income taken for assessment. It is further settled law that all relevant material relied upon by the assessee is to be placed before the Assessing Officer in the course of assessment proceedings. The assessee as a matter of right cannot file any additional evidence in appeal. Such right is regulated by provision of rule 46A of the Income-tax Rules. The appellate authority has to record reasons for admitting additional evidence and allow a reasonable opportunity to the Assessing Officer to examine the additional evidence. But such right to file additional evidence is different from the requirements of the appellate authority to take further evidence to dispose of the appeal.

Under section 250(4), the first appellate authority may make such further enquiry as he thinks fit. In deserving cases, the appellate authority is obliged to hold such further enquiry, which necessarily includes the production of additional evidence. Where fresh evidence is available and the assessee is in a position to produce the same, there is no reason why the first appellate authority should not examine it on merit and pass an appropriate order. It is not correct that in every case, the first appellate authority should provide opportunity to the Assessing Officer to examine any evidence produced by the assessee in the appellate proceeding and obtain a remand report from the Assessing Officer. There is ample power and jurisdiction with the first appellate authority to take evidence necessary for disposal of the appeal. However, in complex cases and where new material is placed in appeal, an opportunity to the Assessing Officer to find rebutting material should be provided in terms of rule 46A. In the instant case, apart from the salary income of Rs. 69,597, the assessee had interest income of Rs. 8,229. Prima facie, from that income, the assessee could deposit Rs. 50,000 for claiming deduction under sections 80CCA and 80CCB. The Assessing Officer added Rs. 30,000 for investment made under section 80CCA as ‘details of investment’ were not given. Likewise, he added Rs. 20,000 for investment under section 80CCB as the said investment was also not made out of the taxable income of the assessee. Without elaboration, the observations made were prima facie untenable. ‘For want of details’, the conclusion that investments were ‘not made out of taxable income of the year’ could not be reached. There was no nexus between the material or want of it (details) and the conclusion reached. Likewise, the addition of Rs. 15,000 on account of low household withdrawal was made without specifying the amount actually withdrawn or the amount that should reasonably be withdrawn in the circumstances of the case. There was no reference to past records, the order of the Assessing Officer hardly satisfied any of the principles applicable even in an ex parte assessment. The additions, even without additional evidence, could not have been sustained by the appellate authority. The revenue had not shown any material to state that the conclusion arrived at by the Commissioner (Appeals) was erroneous and if an opportunity were allowed to the revenue, a different conclusion would have followed. Hence, the discretion was properly exercised by the Commissioner (Appeals), and his order was, therefore, confirmed. The revenue’s appeal was, accordingly, dismissed. (Related Assessment year : 1989-90) - [ITO v. Jitender Mehra (1995) 53 ITD 396 (ITAT Delhi)]

 

Mere fact that the notice of hearing of the appeal was given to the 1TO would not meet the requirements of rule 46A

It was held that by the admittance of additional evidence, something adverse to the ITO is sought to be done in the course of appeal by way of augmenting the record. Therefore, ITO need to be heard for the purpose and be given an opportunity to meet with the additional material by way of cross-examination,  counter evidence and urging submissions in the context of the augmented record. Any order admitting additional evidence behind the back of the ITO is the order passed in violation of the principles of natural justice. – [CIT v. Valimohmed Ahmedbhai (1982) 134 ITR 214 (Guj.)]

 

Rule 46A is not ultra vires the Act - It does not affect power of AAC conferred upon him by sections 250 or 251 and, therefore, rule 46A is not ultra vires sections 250 and 251

The validity to rule 46A was under challenge before the Allahabad High Court in Smt. Mohindar Kaur v. Central Government. The Court analysed the provisions of section 250(4) and section 250(5) of the Act and observed that no part of rule 46A whittles down or impairs the power to make further inquiry conferred upon the first appellate authority by section 250(4). Similarly, section 250(5) confers power upon Commissioner (Appeals) to permit the appellant to raise a fresh point, which has not been even touched by rule 46A. The Court finally held that rule 46A is not ultra vires section 250 or 251. On the contrary, it gives a right to the appellant to produce additional evidence which was earlier not available to him. – [Smt. Mohindar Kaur v. Central Government (1976) 104 ITR 120 (All)].

As regards the powers of appellate authority are concerned, it is well settled that the appellate authority’s powers are wide enough to cover power to admit additional evidence. - [State of Orissa v. Babulal Chhapalia (1966) 18 STC 17 (SC)]


 

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