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TMI Blog2012 (12) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... Accountant Member - This is an Appeal by the Revenue arising out of the Order by the Commissioner of Income-tax (Appeals)-XII, Kolkata ('CIT(A)' for short) dated 12-01-2012, partly allowing the assessee's appeal contesting its assessment u/s. 143(3) of the Income-tax Act, 1961 ('the Act' hereinafter) for the assessment year (A.Y) 2008-09 vide order dated 28-12-2010. 2. The Revenue's appeal raises as many as six (6) grounds; the seventh being only by way of a prayer for modification or substitution or fresh addition to the grounds raised per the Memo of Appeal. The same read as under:- "1. Whether on the facts and in the circumstances of the case, Ld. CIT(A) is justified in deleting the addition of Rs. 74,41,82,254/- made on account of unexplained creditors and advances reflected in the books of account of the assessee despite the failure on the part of the assessee to furnish necessary details and documentary evidences before the assessing officer. 2. Whether on the facts and in the circumstances of the case, Ld. CIT(A) is justified in deleting the addition of Rs. 1,13,15,560/- being the unreconciled difference in bank balances shown by the assessee in the books of account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the appeal was finally heard. There was also no representation whatsoever by the AO before the first appellate authority, i.e., even for extension of time or toward the reasons for the said delay. The assessee's appeal was, as would again be apparent, a high demand case and, therefore, had to be decided on a priority basis; it facing continuous pressure from the administrative CIT for an early disposal of the appeal. It was under these circumstances that the ld. CIT(A) proceeded to decided the assessee's appeal, and which he has done by him on merits, which are not being questioned by the Revenue. The AO failing to represent, as well as to complete and present the remand report, before the first appellate authority despite being afforded proper opportunity toward the same, it does not now lie in the mouth of the Revenue to assail the acceptance of the assesse's case by the first appellate authority, including the materials furnished by it before him. The Revenue's appeal, therefore, deserves to be dismissed in limine, he averred. On being queried by the Bench to exhibit that the remand report stood in fact called for by the ld. CIT(A) from the AO as far back as on 01-04-2011, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliminary objection, which in fact touches the core of the present appeal by the Revenue, first. Its prime grievance, as discerned - on the basis of the material on record and the arguments advanced before us during hearing, is the non-examination by the AO of the material adduced before the ld. CIT(A) for the first time. However, the question that arises is: Could it really lie in the mouth of the Revenue to so contend when it has failed to furnish a remand report, called for by the first appellate authority as early as on 01-04-2011, despite reminders, even by 10-01-2012; the assessee having furnished the said material on the first day of the hearing before the ld. CIT(A) (09-03-2011) itself ? At the same time, there has been, without doubt, a clear violation of rule 46A of the Rules. The question of consideration of the additional evidence/s by the ld. CIT(A) comes only subsequent to it's first qualifying for admission in terms of rule 46A, which is mandatory in nature. In fact, the impugned order is dated 12-01-2012, while the last date of hearing before the ld. CIT(A) was on 10-01-2012. There has, thus, been a consideration of the material furnished by the assessee before him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority from the assessee in support of its claim/s, i.e., as supporting material, and on which power of the said appellate authority there is no restriction, the same itself affords an example of materials not before the AO, which, nevertheless, would not be subject to the rigour of r. 46A, but only necessitate a remand report from the assessing authority. Suffice to say that the two, i.e., the pre-requisites and ingredients for a remand report from the assessing authority, and that warranting observance of r. 46A, do not overlap, and operate in different fields. 4.3 Finally, we are not moved by the assessee's argument that the Revenue's challenge is not qua rule 46A of the Rules; in our view that being the substance of the Revenue's grievance, which in any case could be supported by the argument centering around non-observance of the procedure as prescribed u/r. 46A, as was indeed done by the Revenue through the ld. DR. Also, the assessee's claim that the Revenue does not question the order by the ld. CIT(A) on merits is also without merit. Where is the question, one may ask, of a challenge on merits when there has been no examination of the relevant material by the AO and, co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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