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TMI Blog2001 (10) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... er as undisclosed income of the assessee. Mr. B.B. Deb the learned Departmental Representative drawn our attention to the order of the first appellate authority at para 3.2 and submitted that the assessee has produced the statement of accounts for the year ended 31-3-1988. The learned Departmental Representative further submitted that a copy of the petition dated 30-12-1994 which was filed by the assessee before the D.C.I.T., Dibrugarh Range, Dibrugarh, was also filed before the first appellate authority. The first appellate authority placing his reliance on the statement of accounts and also letter dated 30-12-1994 deleted the addition. According to the learned Departmental Representative the aforesaid two documents filed by the assessee w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of assessment proceedings. The learned authorised representative further submitted that the first appellate authority is well within his power to make further enquiry as he deems fit by exercising his power under section 250(4) of the Income-tax Act, 1961. According to the learned authorised representative the restriction contained in rule 46A for receiving additional evidence cannot stand in the way of making further enquiry by the first appellate authority under section 250(4). The learned authorised representative relied upon the following judgments in support of his contentions:-- (i) CITv. Kanpur Coal Syndicate [1964] 53 ITR 225 (SC); (ii) Jute Corpn. of India Ltd. v. CIT [1991] 187 ITR 688 (SC); (iii) ITO v. Bajoria Foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence. An exception was also given to the Commissioner to direct the production of any document notwithstanding anything contained in sub-rule (1) of rule 46A. In this case, it is not the case of both the parties that the Commissioner himself exercised his powers under sub-rule (4) of rule 46A for the purpose of directing the production of any document. In fact, no direction was issued by the first appellate authority to receive or production of any document. The case law cited by the learned Departmental Representative in the case of Amrital Bhogilal Co. We have gone through the judgment of the Hon'ble Supreme Court carefully. We are of the considered opinion that the facts of that case are entirely different. In that case the Hon'ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The first appellate authority can direct the production of any document for the purpose of disposal of appeal. But that is not the case in our hand. Here the additional evidence was produced by the assessee. Moreover, the Hon'ble Supreme Court had no occasion in this case to interpret rule 46A. Rule 46A was inserted in the Income-tax Rules, 1962, by Income-tax (Second) Amendment Rules, 1973, with effect from 1-4-1973. This judgment of the Hon'ble Supreme Court was delivered in the year 1964. Hence, we are of the opinion that this judgment is not applicable to the facts of this case. 6. The other case referred by the learned authorised representative is in the case of Jute Corpn. of India Ltd. In this case the subject-matter before the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Sub-rule (3) of rule 46A was not dealt with by the Hon'ble Bombay High Court in this judgment. Wherever the additional evidence is produced by the assessee the sub-rule (3) of rule 46A has a significant role to play and the Assessing Officer must be given an opportunity to examine or to controvert the aforesaid evidences. The sub-rule (3) of rule 46A was not dealt within the judgment of the Hon'ble Bombay High Court. However, this sub-rule (3) was dealt with by the Hon'ble Gujarat High Court in the case of Valimohmed Ahmedbhai. Moreover, admittedly the first appellate authority has not given any direction for production of any document in exercise of his power under section 250(4) of the Act or sub-rule (4) of rule 46A. The order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-rule (4) of rule 46A. Whenever this power of the Commissioner was not 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 this case admittedly the Commissioner has not exercised his power under sub-rule (4) of rule 46A. The additional evidence produced by the assessee was received and relied upon without giv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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