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TMI Blog2012 (12) TMI 1187X X X X Extracts X X X X X X X X Extracts X X X X ..... explained that she had received 23 lakh shares of Negolice India from Smt. Meena Bhagchandka. A copy of gift deed was also filed. The AO cross checked the balance sheet of Smt. Meena Bhagchandka and found that as on 31/03/2005, the shares of Negolice India Ltd. worth ₹ 2,82,61,091/- were appearing as part of investments. He further noticed that the same investment also appeared in the balance sheet as on 31/03/2006 in the schedule Investments . He, therefore, concluded that the alleged gift shown by the assessee in her balance sheet was nothing but bogus, and there was no such real transfer of shares from Smt. Meena Bhagchandka to the assessee. He, therefore, treated the sum of ₹ 2,82,61,091/- as undisclosed income of the assessee. 4. Before ld. CIT(A), it was, inter-alia, submitted as under: - a) Since only 11 working days were allowed before the assessment order was passed, no proper opportunity was provided by the AO; b) The gift of 23 lakh equity shares of M/s Negolice India Ltd., valued at ₹ 2,82,61,091/- from her sister-in-law Smt. Meena Bhagchandka on 23/01/2006 was supported by gift deed and other documents namel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ambit of any of the parameter of Rule 46A. 6. Ld. DR submitted that no gift deed was filed before AO and ld. CIT(A) admitted the additional evidence in violation of Rule 46A. He referred to the assessment order and pointed out that in spite of alleged gift of 23 lakh shares of Negolice India Ltd. being made by Smt. Meena Bhagchandka in favour of the assessee before 31/03/2006, the same investment continued in her balance sheets, both, ending on 31/03/2005 and 31/03/2006. He, therefore, submitted that there was no transfer of shares in favour of assessee and, thus, the alleged gift shown by the assesee was nothing but assessee s undisclosed income. 7. Ld. Counsel for the assesee submitted that it is a case of assessment u/s 153C read with section 143(3) and, therefore, assessment could not be made only when some incriminating material was found on the basis of which it could be inferred that there was some undisclosed income of the assessee. He submitted that in the present case, as a consequence of search and seizure in the case of Shri Mahesh Kumar Bhagchandka (husband of the assessee), a certificate issued by Vijaya Bank had been seized on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the AO issued the first notice u/s 143(2) dated 10.12.2008 fixing the date of compliance 16.12.2008 and completed the assessment of the appellant on 31.12.2008 i.e. with in 11 working days. In spite of such a short span the appellant provided all the possible details. In view of such constrains it would appear that the additional evidence is admissible under rule 46A. It is therefore, held that under these facts and such unanimous judicial sanction to admission of additional evidence at appellate stage on valid grounds, the petition and the evidence filed by the appellant in this case is hereby allowed. 12. We find that Hon ble Delhi High Court in the case of CIT vs. Manish Build Well P. Ltd. vide ITA No. 928/2011 order dated 15/11/2011 has, interalia, observed on import of Rule 46A as under: - Rule 46A is a provision in the Income Tax Rules, 1962 which is invoked, on the other hand, by the assessee who is in an appeal before the CIT(A). Once the assessee invokes Rule 46A and prays for admission of additional evidence before the CIT(A), then the procedure prescribed in the said rule has to be scrupulously followed. The fact that sub-section (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is recorded. Rule 46A reads as under: - Production of additional evidence before the [Deputy Commissioner (Appeals)] [and Commissioner (Appeals)]. 46A. (1) The appellant shall not be entitled to produce before the [Deputy Commissioner (Appeals)], any evidence, whether oral or documentary, other than the evidence produced by him during the course of proceedings before the [Assessing Officer], except in the following circumstances, namely: a) where the [Assessing Officer] has refused to admit evidence which 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 subrule (1) unless the [ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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