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TMI Blog2001 (2) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... ) has acted upon the evidence which were produced before him for the first time, which is in violation of r. 46A of the IT Rules. We find sufficient force in such contentions. As per sub-r. (3) of the r. 46A, the appellate authorities shall not take into account any evidence produced under sub-r. (1) unless the AO has reasonable opportunity to examine the evidence or documents. In the present case the evidence such as lease agreement and letters of DFO having admittedly been produced before the CIT(A) for the first time, in our view better the CIT(A) would have done had he afforded reasonable opportunity to the AO to examine these evidence. Having not done so, we think it to be, a fit case to remit back to the AO for the said purpose. As re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: "4 ............The AO considered both the items of expenses to be not related to the appellant's business and disallowed them. On submissions made in appeal, which I find to be correct, both the plantation and gardening expenses are considered business expenditure. As per regulations of the mining laws, the appellant had to plant trees and raise gardening in the area where it had completed mining operations. Therefore, the plantation expenses and gardening expenses could not but be considered to be expenses relating to the appellant's business;" We are, therefore, of the considered view that it is clear that the proximate reason for the learned CIT(A)'s deleting the disallowance was indeed the legal provision imposing obliga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the Tribunal restored the matter to the file of the lower authorities on the ground that additional evidence was admitted in violation of r. 46A of the IT Rules, 1962. 6. Since the very conclusion of the Tribunal is based on erroneous reading of facts, this order must be held to suffering from a fatal error. We have therefore no hesitation in holding that Tribunal's order, dt. 27th June, 2000 is hereby cancelled as this order is suffering from a mistake apparent on record which goes to the very root of the decision taken by the Tribunal and which, has vitiated the conclusion arrived at by the Tribunal. In view of our these findings, the order, dt. 27th June, 2000 passed by this Tribunal is recalled and the matter is hereby directed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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