2009 (3) TMI 626

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..... of sub-rule (2) of rule 46A of IT Rules, 1962 and thereafter proceed to dispose of the appeal on merits
Shri B.R. JAIN, AND Shri K.S.S. PRASAD RAO, JJ Represented By: Shri B.C. Bothra for the Appellant. Shri Suresh Ojha for the Respondent. B.R. Jain, Accountant Member - This appeal by the Revenue against the order dt. 28th March, 2008 of learned CIT (A), Bikaner raises the solitary ground as under: "On the facts and in the circumstances of the case, the learned CIT (A) has erred in deleting the addition of Rs. 14, 00,000 made by the AO under section 144 of the Act whereas the AO has categorically established that it is undisclosed income deposited in the bank account." 2. Briefly the facts are that notice under section 142(1) of .....

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..... isaged by him, had been made with regard to the earning of agricultural income of the magnitude of Rs. 14 lacs to justify the source of availability of funds that came to be deposited in the bank account of the assessee. Furthermore, the learned CIT(A) relied on the evidence that was not available before the assessing authority and as such the same has to be excluded from the record. In this view of the matter, it was contended that the order of learned CIT(A) needs to be set aside. 5. On the other hand learned counsel for the assessee made a reference to the application of the assessee made under rule 46A of IT Rules, 1962 for production of additional evidence before him. The learned CIT(A) made inquiries from the assessing authority on t .....

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..... ess the evidence has been admitted by recording reasons thereof in accordance with sub-rule (2) of rule 46A of IT Rules, 1962, a decision as such reached by the learned CIT(A), was not possible. We, however, are not inclined to exclude such evidence from consideration as the lapse that has cropped up is not attributable to assessee. The requirement of sub-rule. (2) is that no evidence shall be admitted under sub- rule (1) unless the learned CIT(A) records in writing the reasons for its admission. Since no order has been passed by the learned CIT(A) it has to be taken that the assessee's application for additional evidence remained pending before him but he disposed of the appeal on merits without disposing of the aforesaid application of th .....

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