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TMI Blog2005 (1) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding recording of reasons before admitting new evidence at the appellate stage and also on the ground that no opportunity was afforded to the Income-tax Officer to rebut the evidence?" - Commissioner of Income-tax (Appeals) took the additional/fresh evidence de hors to rule 46A of the Rules and the Tribunal has rightly set aside that part of the order - we answer the question referred to us in the affirmative, i.e., against the assessee - - - - - Dated:- 20-1-2005 - Judge(s) : R. K. AGRAWAL., PRAKASH KRISHNA. JUDGMENT The judgment of the court was delivered by Prakash Krishna J.- The Income-tax Appellate Tribunal, Allahabad, has referred the following question of law under section 256(1) of the Income-tax Act, 1961 (hereinafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplained credit in the name of one Sri Vishwanath Singh. The said order was challenged in appeal before the Commissioner of Income-tax (Appeals). During the course of argument of the appeal the assessee produced certain evidence by way of additional evidence. Taking into consideration the additional evidence produced by the assessee before the Commissioner of Income-tax (Appeals), he deleted the additions made in the biri account, in wrapper label and labelling accounts, in tobacco account and cash credit in the name of Sri Vishwanath Singh. The Department challenged the order before the Appellate Tribunal. The appellate authority found that the additional evidence in the shape of certificate from Hind Tobacco Company was admitted in evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) is not sufficient compliance with rule 46A of the Rules. Additional evidence/fresh evidence can be admitted in appeal under the circumstances specified under rule 46A of the Rules and after complying with the procedure laid down therein. In the present case, he submitted that not only no opportunity was afforded to the Department but to file evidence, if any, in rebuttal, no attempt was made by the Commissioner of Income-tax (Appeals) to verify the genuineness, correctness and relevancy of the documents in question. Elaborating his argument it was submitted that the aforesaid ruling of the apex court in the case of K. Venkataramiah, AIR 1963 SC 1526 was given under different circumstances and also under different statute and has no re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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. (4) Nothing contained in this rule shall affect the power of the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) to direct the production of any document, or the examination of any witness, to enable him to dispose of the appeal, or for any other substantial cause including the enhancement of the assessment or penalty (whether on his own motion or on the request of the Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Tribunal, in the present case, is that no opportunity to examine new evidence or to produce any evidence in rebuttal was afforded to the assessing authority. This finding of the Tribunal is not under challenge. In view of this finding it is difficult to accept the contention of learned counsel for the assessee that the requirements of rule 46A have been fulfilled in the present case. Rule 46A contains principles of natural justice. Nobody should be condemned without giving opportunity of hearing. In the case in hand the appellate authority has taken into consideration fresh evidence produced before it without following the principles of natural justice. In view of this we find no legal infirmity in the order of the Tribunal. Apart fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s stage. Be that as it may there is nothing on record of the present case to show that the additional evidence was taken with the assent of both sides. The argument that the assessing authority was present during the course of hearing of appeal will not absolve the appellate authority not to pass order in writing with the reasons for admission of fresh evidence. Mere presence of the assessing authority will not give presumption that he assented for taking the additional evidence on record. Thus the Commissioner of Income-tax (Appeals) took the additional/fresh evidence de hors to rule 46A of the Rules and the Tribunal has rightly set aside that part of the order. In view of the foregoing discussions, we answer the question referred to u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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