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TMI Blog2014 (5) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... le 46A - The finding made by the CIT(A) is equally perverse - The genuineness of the transaction was the issue to the knowledge and notice of the assessee – the sale of investment to the tune of ₹ 5,51,420 but cheque deposits were more than crore - The finding of the Tribunal is based on the inadmissible additional evidence adduced by the assessee before the CIT (A) – thus, the order of the Tribunal is set aside – Decided in favour of Revenue. - ITAT No. 194 of 2013 - - - Dated:- 24-3-2014 - GIRISH CHANDRA GUPTA AND TAPABRATA CHAKRABORTY, JJ. Ms M. Bhargava, Advocate for the Appellant Mr. Ananda Sen, Advocate for the Respondent JUDGEMENT The subject matter of challenge in this appeal is a judgment and order dated 12th June, 2013 by which the learned Tribunal affirmed the order of the CIT (Appeal) and dismissed the appeal preferred by the revenue. The facts and circumstances of the case briefly stated are as follows: Notices under section 148 of the Income Tax Act were issued seeking to reopen the assessment for the assessment years 2006-07 and 2007-08. The reasons recorded were as follows: A.Yr.2006-07 : Information h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served on 22.04.2010 to the assessee fixing the date of hearing on 10.05.2010. The Ld. A/R, A.K. Dudhewala appears on the day and requested for adjournment till 25.06.2010. On 25.06.2010, he is requested to furnish books of accounts with some details. The notice u/s. 133(6) were sent to different parties but the notice was returned with the post remark Not known . On being informed, the Ld. A/R submitted fresh addresses of the companies and hearing was fixed on 13.11.2010. The Inspector was deputed to collect books, cash book, accounts etc. with notice u/s. 133(6) but Inspector reported that they could not produce any book. Consequently, summon u/s. 131 was served to the companies attend with books of accounts for A.Y. 2006-07 2007-08 on 16.12.2010 and 21.12.2010 but none appeared. As per books of the assessee, it was ascertained that following cash was received from different companies out of sale proceed of unquoted share. 1.Long Life Agro (P) Ltd. Rs.13,20,000 2.Madhavan Vyapaar (P) Ltd. Rs.10,00,000 3.Immortal Vinimay Co. Ltd. Rs.10,50,000 4.B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were documents relied upon and adduced by way of additional evidence by the assssee before the CIT (Appeal) which he allowed to be taken on record without affording any opportunity, far less a reasonable opportunity, to the Assessing Officer to examine them and thereby violated sub-rule (3) of Rule 46A of the Income Tax Rules, which provides as follows: The Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) shall not take into account any evidence produced under sub-rule (1) unless the Assessing Officer has been allowed a reasonable opportunity a) to examine the evidence or document or to cross examine the witness produced by the appellant, or b) to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the appellant. Mr. Sen submitted that there is no question of any violation of sub-rule (3) because his client did not adduce any additional evidence. He added that, in any event, alleged violation of sub-rule (3) can only be made provided any additional evidence has been adduced. Additional evidence, according to him, cannot be adduced unless sub-rule (1) of Rule 46A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by sub-rule (1) of Rule 46A would make the situation worse. Sub-rule (1) of Rule 46A contemplates a case where the assessee himself wants to adduce evidence at the appellate stage. The assessee in the case before us wanted to rely, at the appellate stage, upon documents allegedly submitted by the noticees under sections 133(6) and 131 of the Income Tax Act. All these noticees were third parties who according to the Assessing Officer did not respond and could not also be served. The alleged replies allegedly made by the third parties are not and could not have been in the possession or control of the assessee. Therefore, the assessee could not have relied upon them either before the Assessing Officer or before the CIT (Appeal). There is nothing to show that the third parties appeared before the CIT (Appeal). In the absence of the third parties, the contents of these documents could not have been proved. Therefore, neither the existence of the documents nor the contents thereof were proved. The appellate authority proceeded to reverse the orders under section 147/143(3) of the Income Tax Act on the basis of documentary evidence of which neither the existence nor the contents were p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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