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TMI Blog2015 (9) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to have granted some reasonable time to the Assessing Officer to verify the additional evidence. On due consideration of the aforesaid, we are of the view that Commissioner as well as learned Tribunal erred in proceeding with the matter and admitting the additional evidence filed by the assessee without granting further time to verify the same and submit a report. Thus, we set aside the impugned orders dated 23.8.2013, 29.7.2013, 23.8.2013 passed by the Income Tax Appellate Tribunal, by answering the question of law in favour of the appellant department and remit the matter back to the learned Commissioner (Appeals) with a direction that sufficient time be granted to the department to verify the documents and rebut that evidence and thereafter decide the controversy a fresh in accordance with law, as early as possible, and endeavour shall be made to conclude it within a period of six months from the date of receipt of certified copy of the order. Decided in favour of the revenue - ITA Nos.6/2014, 7/2014, 8/2014, 9/2014, 10/2014, 11/2014,12/2014, 13/2014, 14/2014, 15/2014, 16/2014, 17/2014, 18/2014 & 19/2014 - - - Dated:- 30-10-2014 - P.K. JAISWAL AND D.K. PALIWAL, JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r opportunity to submit its comments as required under Rule 46A of the Income Tax Rules is contrary to law (ii) Whether the explanation offered by Deputy Commissioner of Income Tax for not submitting the comments due to being busy in deciding limitation cases totaling 150 cases and further due to election duty assigned by election commission, tentamounted to sufficient cause for not submitting the report? 6. For the sake of convenience the facts are borrowed from ITA.No.6/2014. 7. Brief facts of the case are that search under Section 132 was carried out to the assessee's premises on 2.5.2008. The respondent assessee is a broker in commodity exchange. It derives profit through transactions with various commodity exchanges such as Multi Commodity Exchanges of India Ltd (MCX) and National Board of Trade (NBOT) on its own behalf and also on behalf of its client. It was found that clients name did not appear in the records of the exchange, and the entire trade through exchange was made in the name of assessee. The profit derived through such transactions, however, was apportioned between the assessee and the clients. The assessing officer asked the assessee to prove t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment proceedings those confirmations ITRs could not receive from the concerned clients inspite of its repeated request and as such, the assessee was prevented by sufficient cause to furnish those documents before the Assessing Officer. The learned Commissioner found that these documents in the form of additional evidences were not in the possession of the assessee, rather they had to collect it from its client; assessee could collect these documents with lot of difficulties, but after completion of assessment. The learned Commissioner agreed with the assessee's plea that it was prevented by sufficient cause to furnish those documents to Assessing Officer and accordingly admitted those documents as additional evidences, but refused to grant further time and decided the matter finally. In an appeal before the ITAT the contention of the revenue was that sufficient opportunity was not granted to the assessing officer, to verify those additional documents. Relevant part of the reasoning assigned by the Commissioner (Appeal) reads as under 42.3 During the appeal proceedings, detailed submissions have been made which have been reproduced in para 3 above. It has been plead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n submission or on the issue of admissibility of additional evidences under rule 46A. In its application, the assessee had taken plea that during the assessment proceedings, those confirmations, ITRs could not be received from the concerned clients inspite of its repeated request and as such the assessee was prevented by sufficient cause to furnish those documents before the A.O. I have considered the application so made by the assessee for admission of additional evidences. I find that these documents in the form of additional evidences were not in the possession of the assessee, rather they had to collect it from its clients; the assessee could collect these documents with lot of difficulty but after the completion of assessment. In view thereof, I agree with the assessee's plea that it was prevented by sufficient cause to furnish those documents before the A.O. Accordingly, I admit these documents as additional evidences. 12. The learned ITAT affirmed the aforesaid reasoning and stated sufficient opportunity was granted to the Assessing Officer and observed that the learned CIT (A) was not expected to wait for indefinite period and upheld the finding of the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 appellant was prevented by sufficient cause from producing before the [Assessing Officer] any evidence which is relevant to any ground of appeal; or (d) where the [Assessing Officer] has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal. (2) No evidence shall be admitted under sub-rule (1) unless the [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)] records in writing the reasons for its admission. (3) The [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)] shall not take into account any evidence produced under subrule (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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not ordinarily allow the new evidence to be adduced in order to enable the party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it. 21. It is not in dispute that additional evidence filed by the assessee could not be verified by the Assessing Officer because, he was engaged in the time bound matters involving more than 140 block assessments and also to the fact that he had been assigned the duties of expenditure in the U.P. State Election in Ghaziabad Constituency by the Election Commission of India and, therefore, it was practically impossible for him to offer the comments on the aforesaid additional evidence and, therefore, he sought one month further time for due verification of the same. The aforesaid facts are not disputed by the learned authorities nor by the assessee's. 22. The decision of Delhi High court cited by the learned counsel for the respondent in the case of Commissioner of Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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