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TMI Blog2008 (6) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... he part of the counsel of the assessee. The assessee came to know only after the receipt and perusal of the assessment order and thereafter the assessee changed the counsel, this said explanation appears to be bona fide and in our view the assessee was prevented by sufficient cause from producing the evidences which were called upon to produce before the AO. Relying on the decision of Hon'ble Bombay High Court in the case of CIT vs. Suretech Hospital Research Centre Ltd.[ 2007 (6) TMI 522 - BOMBAY HIGH COURT] . We held that the learned CIT(A) was not justified in not admitting the additional evidences which were necessary for the disposal of the case. Since all the evidences have to be examined by the AO, therefore, in the interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against loss of Rs. 1,77,365 as declared by the assessee. Ground No. 4: The assessee is aggrieved that the learned CIT(A) has erred in law as well as on the facts of the case in confirming the addition of Rs. 5,42,555 under s. 68 on account of unsecured loans. Ground No. 5: The assessee is aggrieved that the learned CIT(A) has erred in law as well as on the facts of the case in confirming the addition of Rs. 7,75,000 under s. 68 on account of share application money. Ground No. 6: The assessee is aggrieved that the AO has erred in law as well as on the facts of the case in charging interest under ss. 234B and 234C of the Act. 2. We have heard the parties. The brief facts of the case are that the assessee was served notice under s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the additions made by the AO on the receipt of the order of the AO and thereafter the counsel was changed. The affidavit in this regard was also filed before the learned CIT(A). The circumstances, therefore, were beyond the control of the assessee and therefore, assessee was prevented by sufficient cause from producing the documents/evidences before the AO. The assessee produced the necessary evidences before the CIT(A) under r. 46A which in the opinion of the assessee were required for the disposal of the case. The learned CIT(A) sent the said application along with the documents before the AO who vide letter dt. 7th Nov., 2007 submitted before the learned CIT(A) that the assessee had not appeared and had not produced any evidence despi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 46A of the IT Rules, 1962. Moreover, when the application under r. 46A along with documents were sent to the AO and the AO in his letter dt. 7th Nov., 2007 has submitted before the learned CIT(A) that on the basis of evidence filed before the learned CIT(A), the said loans and share application money are verifiable from the books of the assessee, then the learned CIT(A) within his power under sub-r. 4 of r. 46A could direct the AO to examine the documents/evidences filed by the assessee to enable to dispose of the appeal. The said sub-r. (4) of r. 46A is reproduced as under: "(4) Nothing contained in this rule shall affect the power of the Dy. CIT(A) for as the case may be, the CIT(A) to direct the production of any document, or the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of the evidence before him in the interest of justice. This matter has recently been dealt with elaborately in CIT vs. K. Ravindranathan Nair (2003) 184 CTR (Ker) 46 which has held that the learned CIT(A) was not justified in rejecting the admission of confirmatory letters straightway on the plea that the evidence was not filed before the AO. This ratio squarely applies on the facts of the present case inasmuch as here also his allegation was that the evidences were not med before AO, which is not justified ground for rejection. Also, kindly refer to Smt. Prabhavati S. Shah vs. CIT (l998) 148 CTR (Bom) 192 : (l998) 231 ITR 1 (Bom), it is also a decision directly supporting the case of the assessee. The present case of the assessee a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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