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TMI Blog2016 (1) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... al (for brevity, 'ITAT') in I.T.A.No.1081 of 2013 dated 21.03.2014. A best judgment assessment was passed under Section 144 of the Act by the assessing authority on 21.01.2013 disallowing deductions under Section 10-A of the Act. Aggrieved thereby, the assessee carried the matter in appeal to the CIT (A) who, in his order dated 29.04.2013, observed that the appellant had explained the reasons for non-appearance on some dates, on the ground that the company was in dire straits; they had also stated that the information, sought for by the assessing officer, was fully available; and, on the ground of exceptional circumstances, the assessee had prayed that an opportunity be given to them to submit all details requested for by the assessing offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appellant to produce additional evidence before the first appellate authority, and not on the right of the first appellate authority to call for production of any fresh evidence or information; this aspect is clear from sub-rule (4) of Rule 46-A itself; the entire additional evidence came on record before the first appellate authority as he decided to examine the facts of the case in depth, and adjudicate upon the matter on the basis of the evidence and the material thus gathered; the CIT(A) was empowered to do so under Section 250(4) of the Act; the result of the enquiry, conducted by him, could cement the case made out by the assessing officer or to help the assessee against the findings of the assessing officer; the mere fact that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceptional circumstances, the requirement of sub-rule (3) may be dispensed with. The appeal preferred by Revenue was dismissed. In support of their claim for exemption under Section 10-A, the assessee had filed, before the CIT (A), copies of the certificate of registration with STPI, Hyderabad and Goa, Softex forms submitted to STPI, reconciliation of export proceeds with invoices raised, FIRCs and bank statements. The fact that the documents, furnished by the appellant before the CIT (A), were not brought to the notice of the assessing authority is not in dispute. Section 250 of the Act prescribes the procedure in appeal. Section 250 (1) of the Act enables the CIT (A) to fix a day and place for the hearing of the appeal, and to give noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sub-rule (1) unless the [Assessing Officer] has been allowed a reasonable opportunity-- (a) to examine the evidence or document or to crossexamine 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. (4) Nothing contained in this rule shall affect the power of the [Deputy Commissioner (Appeals)] [or, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Rules disables the CIT (A) from taking into account any evidence produced before him unless the assessing officer has been allowed a reasonable opportunity to examine the evidence or documents. In the present case, admittedly, no such opportunity has been afforded to the assessing officer. The Tribunal has held that, if the evidence is clinching in nature and does not leave any further room for doubt, no useful purpose would be served in performing the ritual. What the Tribunal failed to note is that Rule 46-A (3) requires the assessing officer to be given an opportunity to examine the documents produced by the assessee for the first time before the first appellate authority. This mandate of Rule 46-A (3) could not have been dispensed w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions in the context of the augmented record; when a prayer for additional evidence is made, it is an independent and substantive application seeking a new right; notice of such application was necessary to the ITO; he should have been afforded the opportunity to oppose it; no order granting the request for additional evidence could have been passed behind the back of the ITO in violation of principles of natural justice; and notice of the appeal cannot be equated with the notice of a future application to lead additional evidence. The statutory obligation which the CIT (A) was required to discharge, under Rule 46-A(3) of the Rules, cannot be whittled down, or brushed aside as performing a ritual. While sub-rule (4) of Rule 46-A of the Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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