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TMI Blog2011 (12) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... arise for determination in this appeal: (1) Whether the Commissioner of Income Tax (Appeals) was correct in relying on fresh evidence filed before him contrary to provisions of Rule 46A of the Income Tax Rules, 1962? (2) Whether the additions made under Section 40(A)(3) by the Assessing Officer was just and proper in the facts and circumstances of the case which was not required to be interfered with by the appellate authority, and the Tribunal? (3) Whether the addition made by the Assessing Officer under Section 68 of the Income-Tax Act is just and proper? 3. The material facts leading up to this appeal giving rise to the abovesaid three questions of law are as follows: The assessee did not file return within the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made by cash even though the amount was in excess of Rs. 20,000/- and further, in respect of the amount paid to Mangala Builders Private Limited. M/s. Indus Constructions and M/s. Baliga Sales Corporation, Assessing Officer found that in view of the previsions of Section 68 of the Act, as there was discrepancy in the accounts maintained by the assessee and Mangala Builders Private Limited, M/s. Baliga Sales Corporation and M/s. Indus Construction to the extent of Rs. 38,000/-, Rs. 11,04,585/- and Rs. 17,10,000/-, added the said income and accordingly passed the order of assessment. Being aggrieved by the said order, the assessee preferred an appeal before the Commissioner of Income Tax (Appeals), Mangalore. The first appellate authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules'), no additional documents can be produced by the assessee as of right and reasons have to be assigned by the Appellate Authority for permitting the assessee to produce the additional documents. However, the same is subject to sub-rule (4) wherein the First Appellate Authority is not precluded from directing the parties to produce the documents which are inquired for the purpose of effectively deciding the appeal and in the present case, first appellate authority on the basis of the documents that were produced for the first time along with the letter, has relied upon those documents which were not available for the Assessing Officer and therefore, finding of the First Appellate Authority is based upon the documents which are not admis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that where the expenditure is not towards income of the business, it is not necessary to issue the cheque in respect of the amount in excess of Rs. 20,000/ - under Sections 28 and 29 of the Act. So far as undisclosed credit is concerned, he submitted that in view of the documents that were available before the Assessing Officer and also the documents which were made available on the direction of the First Appellate Authority, it would be clear that the said amount cannot at all said to be undisclosed credit as the same has been accounted for in the return filed in the year 2001 and that as there was mistake in making entries, the same has been rectified and therefore, the concurrent findings on the question of fact arrived at by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion of the authority is necessary for the effective decision of the case. Further, it is clear that before the ITAT, no ground was raised regarding reception of additional evidence by the First Appellate Authority in contravention of Rule 46A of Rules and in any view of the matter, we hold that the first appellate authority was justified in relying upon the material produced and there is no violation of Rule 46A of the Rules and accordingly, answer the said question of law against the revenue and in favour of the assessee. Re: Substantial question of law No. (2):- 9. It is clear from the order passed by the Assessing Officer that though the assessee which is described as family trust was putting up construction not for self-occupation, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis upon which Rs. 38,000/- was added, was in view of the difference in the books of account maintained by the assessee and M/s. Mangala Builders Private Limited and the "particulars that were produced before the First Appellate Authority were also available before the Assessing Officer which would clearly show that there was no difference in the books of account having regard to the balance carried forward for each year and therefore, concurrent finding arrived at by the First Appellate Authority and the ITAT is justified. Insofar as undisclosed credit added in respect of M/s. Indus Constructions and M/s. Baliga Sales Corporation, it is clear that material produced-before the assessing officer and the First Appellate Authority would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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