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TMI Blog2015 (2) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent of : R.B Arora, CA ORDER PER A. T. VARKEY, JUDICIAL MEMBER This is a departmental appeal against the order of the ld CIT(A)-XXII, New Delhi dated 26th February 2010 for Assessment Year 2006-07. 2. The facts in brief are that return of income was filed on 31st March 2007 declaring income of ₹ 2,94,895/-. Subsequent thereto, it is apparent from the order of assessment that various notices issued remained uncomplied. The relevant portions which highlights the non-compliance by the assessee reads as under:- Return of income was filed on 31103/2007 declaring income of ₹ 2,94,895/-. The same has been processed u/s 143(1) of the I.T. Act. Subsequently, the case was selected for scrutiny through CASS. Notice u/s 143(2), was issued on 10-08-2007 duly served upon the assessee accordingly. During the relevant financial year, the assessee has been deriving income from house property, capital gains other sources. In response to the said notice neither anybody attended nor any application for adjournment was received. Thereafter, notice u/s. 143(2) dated 24.8.20087 fixing the case for 07.09.2007 was issued, which was returned back un-served by the notice serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Smt. Asha Khanna wife of Sh. Arun Khanna Residents of 4831/26, Ansari Road, Darya Ganj, New Delhi-110002. The buyers of the property have made payment of ₹ 21,00,000/- in cash by making withdrawal in cash from Saving Bank Account No.3916 (Smt. Asha Khanna) and 1275 (Sh. Arun Khanna) both the above accounts maintained with The Khatri Co-operative (U) Bank Ltd., Darya Ganj, New Delhi. As per copies of bank statement, for both the above accounts the amount was withdrawn prior to the date of deposit in bank account of Suresh Seth HUF with ICICI Bank Ltd. Thus the appellant has tried to establish co-relation between the account with ICICI Bank, in which cash was deposited and particulars of Suresh Seth HUF. The copy of Balance-sheet of Suresh Seth HUF, copy of Computation of Wealth and also copy of Return of Wealth filed by Suresh Seth HUF have been placed before me. Based on these documents I am inclined to admit that the appellant has been able to establish, beyond reasonable doubt, that cash which was deposited in account with ICICI Bank belongs to Suresh Seth HUF and not to the appellant. If at all any action is called for on this issue the AO should have considered the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules). 9. Having considered the rival submissions, and after carefully perusing the order of the authorities below and material on records, we find that the assessee did furnish fresh evidences before the ld CIT(A), which has led him to delete the additions. However, before doing so, we also find that there is no finding that such additional evidence warrants admissions under:- Rule46A. Which is not in conformity with Rule46A as held by the jurisdictional High Court in Manish Buildwell (204 Taxman 106) wherein it has been observed as under:- Rule 46A is a provision which is invoked, on the other hand, by the assessee who is in an appeal before the Commissioner (Appeals). Once the assessee invokes Rule 46A and prays for admission of additional evidence before the Commissioner (Appeals), then the procedure prescribed in the said rule has to be scrupulously followed. The fact that sub-section (4) of sec. 250 confers powers on the Commissioner (Appeals) to conduct an enquiry as he thinks fit, while disposing of the appeal, cannot be relied upon to contend that the procedural requirements of rule 46A need not be complied with. If such a plea of the assessee is accepted, it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction, that the requirements of rule 46A need not be followed. On the other hand, whenever the assessee, who is in appeal before him, invokes rule 46A, it is incumbent upon the Commissioner (Appeals) to comply with the requirements of rule strictly. In the instant case, the Commissioner (Appeals) has observed that the additional evidence should be admitted because the assessee was prevented by adducing them before the AO. This observation takes care of clause (c) of sub-rule (1) of rule 46A. The observation of the Commissioner (Appeals) also takes care of sub-rule (2) under which he is required to record his reasons for admitting the additional evidence. Thus, the requirements of sub-rules (1) and (2) of rule 46A have been complied with. However, sub-rule (3) which interdicts the Commissioner (Appeals) from taking into account any evidence produced for the first time before him unless the AO has had a reasonable opportunity of examining the evidence and rebut the same, has a reasonable opportunity of examining the evidence and rebut the same, has not been complied with. There is nothing in the order of the Commissioner (Appeals) to show that the AO was confronted with the confirmat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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