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TMI Blog2011 (8) TMI 1215X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment by: Ms. Y. Kakkar, Sr. D. R. O R D E R. PER K. D. RANJAN, AM : This appeal by the Revenue and the cross objection by the assessee for assessment year 2005-06 arise out of order of the ld. CIT (Appeals) XXIV, New Delhi. These appeals were heard together and for the sake of convenience are being disposed of, by this consolidated order. 2. The grounds of appeal raised by the Revenue are reproduced as under :- 1. In deleting the addition of ₹ 14,52,000/- made on account of unexplained cash deposits violating the Rule 46-A of the Income Tax Act as the additional evidence were filed by the assessee before the appellate authority, the admissibility of which was objected by the assessing officer; 2. In accepting the sweeping submissions of the assessee which do not stand supported by the evidences. 3. The only issue for consideration in Revenue s appeal relates deleting the addition of ₹ 14,52,000/- made on account of unexplained cash deposits by admission of additional evidence in violation of provisions of Rule 46-A of the Income-tax Rules, 1962. The facts of the case stated in brief are that the Assessing Officer, Ward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on specific queries made by the ld. CIT (A) on 31st August, 2010 wherein the assessee had been directed to furnish further information submitted reply explaining certain payments made to Shri Manas Kapur and nature of business of two proprietorship concerns. 5. The ld. CIT (A) along with submissions made by the assessee forwarded the document for the comments of the assessing officer. The AO, Circle : 25 (1) vide her letter dated 28/07/2010 had raised specific objection for admission of the additional evidence. The ld. CIT (A) obtained comments of the assessee on objections raised by the AO for admission of the additional evidence. The ld. AR of the assessee raised objection about the jurisdiction of the AO, Ward : 25(4) on the ground that the assessee was regularly assessed with ITO, Ward : 25(3) and, therefore, ITO, Ward : 25 (4) was not having any jurisdiction over the assessee. As regards the additional evidence, it was submitted that the assessee did not have any valid and proper; opportunity of producing the evidence before the AO and, therefore, the assessee s case was covered by clauses (b), (c) and (d) of Rule 46-A. It was also submitted that under sub Rule (4) of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treated unexplained by the assessing officer and accordingly assessed as income. The cash deposits have been duly explained from bank withdrawals and business receipts / withdrawals as mentioned above, which are held genuine in view of facts that no prudent man will withdraw accounted cash from his bank account/business concerns and convert it into unaccounted / unexplained / black money and simultaneously deposit his unaccounted /unexplained / black money in the bank account. The AO has not brought any material on record to establish the fact that the cash withdrawals have been utilized other than the purpose specified by the appellant. Keeping in view the facts and circumstances in totality and also judicial pronouncements in this regard, I hereby hold that the AO was not justified in treating deposits of ₹ 14,52,000/- unexplained. Hence the addition of ₹ 14,52,000/- is deleted. Accordingly, the appellant gets relief. 7. Aggrieved by the order of the ld. CIT (A) the Revenue is in appeal before us. 8. Before us the ld. Sr. DR submitted that where no comments were offered by the assessing officer on examination/verification of the additional evidence in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO, in our considered opinion, is cryptic and without sufficient opportunities given to the assessee. The ld. CIT (A) in order to decide appeal has admitted additional evidence on the ground that proper opportunity was not afforded to the assessee. He has also mentioned that additional evidence filed by the assessee was necessary in the interest of justice and to decide the issue before him. The ld. CIT (A) has recorded finding of fact that the assessee had a reasonable cause for admission of additional evidence. Hon ble Bombay High Court in the case of Smt. Prabhawati S. Shah Vs. CIT 231 ITR 1 (Bom.) has held that on plain reading of Rule 46A of Income Tax Rules, 1962, it is clear that the Rule is intended to put fetters on the rights of the assessee to produce before the Appellate Assistant Commissioner any evidence oral or documentary, other than evidence produced by him during the course of proceedings before Income Tax Officer, except in the circumstances set out therein. It does not deal with powers of Appellate Assistant Commissioner to make further enquiry or to direct the Income Tax Officer to make further enquiry and to report the result of the same to him. This po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee without verification of additional evidence filed before him. Therefore, in our considered opinion, the order passed by the ld. CIT (Appeals) is a speaking order and cannot be treated as a cryptic order as contended by the ld. Sr. DR. Further with effect from 1/06/2003 power of the ld. CIT (Appeals) to set aside the appeal to the assessing officer has been withdrawn. It is a settled law that the powers of the ld. CIT (Appeals) are co-terminus with that of the assessing officer. Therefore, after withdrawals of power of the ld. CIT (Appeals) to set aside the issue to the file of the assessing officer more responsibilities are cast on the ld. CIT (Appeals) to step into the shoes of the assessing officer and decide the appeal on the basis of material already on record or by admitting the additional evidence filed by the assessee or the ld. CIT (Appeals) can ask the assessee to produce certain evidence, which is necessary for deciding the issue. In the case before us the ld. CIT (Appeals) has recorded his satisfaction that the additional evidence was necessary for deciding the appeal on merits and for the purpose of rendering substantial cause of justice. Therefore, in ou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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