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TMI Blog2011 (8) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... . D.V. Taneja for the Appellant. Ms. Y. Kakkar for the Respondent. ORDER Rajpal Yadav, Judicial Member. The assessee is in appeal before us against the order of the Learned CIT(Appeals) dated 4.3.2011 passed for assessment year 2006-07. The grounds of appeals taken by the assessee are not in consonance with Rule 8 of the ITAT's Rules, they are descriptive and argumentative in nature. In brief, assessee has pleaded that Learned CIT(Appeals) has erred in confirming the addition of Rs. 11,98,100. The assessee has further pleaded that Learned CIT(Appeals) has erred in not admitting additional evidence demonstrating the assessee as a petty civil contractor. According to the assessee, Learned First Appellate Authority sough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals). He pleaded that Assessing Officer has erred in adding an amount of Rs. 16,98,100 with the aid of section 68 on account of unexplained cash deposits in bank account. The assessee has filed an application for permission to lead additional evidence. With the help additional evidence, assessee sought to demonstrate that he is a civil contractor and his income has to be determined as per section 44AD. The cash deposited in the bank account on various dates are the contract receipts received by him. Learned First Appellate Authority has called for remand reports but rejected the application of the assessee on the ground that documents submitted by the assessee are not worth admitting. On an analysis of bank accounts, Learned CIT(Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord carefully. Rule 46A has a direct bearing on the controversy, therefore, it is salutary upon us to take note of this rule. It reads as under: "46A (1) The appellant shall not be entitled to produce before the DC(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 appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ". 6. A bare perusal of this Rule would reveal that appellant i.e. assessee shall not be entitled to produce any evidence whether oral or documentary, other then the evidence produced by him during the assessment proceedings unless conditions enumerated in clause A to D of sub-rule (1) are available. According to these clauses, additional evidence would be permitted, if it is proved that Assessing Officer has refused to admit the additional evidence or assessee was called upon to produce a specific evidence by the Assessing Officer but by virtue of sufficient reasons he could not produce such evidence or assessee was to produced any evidence relevant to the grounds of appeal but he could not produce it before the Assessing Officer or Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht course. Once he called for a remand report on the merits of the evidence and gave an opportunity to the Assessing Officer for rebutting the evidence then conditions of sub-rules (1) and (2) would be construed as fulfilled. Learned CIT(Appeals) may not rely upon the evidence for rejecting the arguments of the assessee on the ground that it is not sufficient to buttress the contentions of the assessee, but he cannot say that evidence is not to be taken on record. The admissibility of the evidence is to be decided at the first stage under sub-rule(1). For that he need not to call for a remand report on the merit of the evidence. He can simply hear the Assessing Officer as is provided in sec. 250(1) of the Act. In other words, Learned CIT(Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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