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TMI Blog2019 (9) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee before him under Rule 46A of the I.T rules. Thereafter, the CIT(A) had disposed off the appeal on merits under Sec. 250(6), vide his order dated 13.03.2018. To sum up, the aforesaid order passed by the CIT(A) under Rule 46A(2) while disposing off the appeal of the assessee stands merged in the order passed by him under Sec. 250(6) of the Act. We shall first advert to the order passed by the CIT(A) under Rule 46A(2). The assessee has assailed the declining on the part of the CIT(A) to admit the 'additional evidence' on the following grounds of appeal: "A) Not admitting the additional evidences 1) The learned Commissioner of Income Tax (Appeals) - 28 (Mumbai) [CIT(A)] erred on facts and in law in not admitting the additional evidences filed by the appellant by holding that: (a) the AO had given more than reasonable opportunity and the appellant failed to attend the hearings and give submissions; (b) the confirmations are stereotyped, prepared by assessee himself and unverified signatures appended as confirmations; (c) the documents do not inspire any confidence and are clearly cooked up; (d) the documents are self serving documents (e) the evidences filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, which it had failed to avail, therefore, the said fresh documentary evidence could not be admitted in the course of the appellate proceedings. Apart therefrom, the CIT(A) was also of the view that the confirmations filed by the assessee did not inspire much of confidence and appeared to be in the nature of cooked up documents. Accordingly, on the basis of his aforesaid observations the CIT(A) declined to admit the aforesaid additional evidence, vide his order passed under Rule 46A(2) of the Income Tax Rules, 1962, dated 13.03.2018. 4. Aggrieved, the assessee has assailed the aforesaid order passed by the CIT(A) under Rule 46A(2) of the Income Tax Rules, 1962, which as observed by us hereinabove would merge with the order passed by him under Sec. 250(6) of the Act. We find that it was the claim of the assessee before the CIT(A) that initially on 26.06.2015 it was called upon to furnish certain information in the course of the assessment proceedings, which was duly complied with and the requisite documents as were called for by the A.O were filed on 29.07.2015. Also, subsequent replies to the notices issued by the A.O were filed till January, 2016. As is discernible from the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence which was filed by the assessee by way of 'additional evidence' under Rule 46A before the CIT(A). We find substantial force in the claim of the ld. A.R that as the assessee was not afforded sufficient time for furnishing the aforesaid confirmations of the parties in the course of the assessment proceedings, therefore, the same could not be obtained by him from the parties and thereafter filed with the A.O. Nothing is discernible from the orders of the lower authorities from where it could be gathered that the assessee was afforded sufficient time to furnish the confirmations of the aforementioned 19 parties in the course of the assessment proceedings. In fact, a perusal of the notice issued under Sec.142(1), dated 15.02.2016, reveals that the A.O had observed that the assessee as on 07.01.2016 was directed to furnish the confirmations along with the other details in respect of the aforementioned parties. Accordingly, we are of the considered view that it can safely be concluded that sufficient opportunity was not afforded to the assessee for furnishing the confirmations of the aforementioned parties in the course of the assessment proceedings. Apart therefrom, we find fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isallowance made by the AO of Rs. 1,32,875/- u/s. 40(a)(ia) and confirmed by the CIT(A), may be deleted. C) Addition u/s. 68 - Rs. 1,30,85,423/- 5) The learned CIT(A) erred on facts and in law in confirming the addition made by the AO u/s. 68 of Rs. 1,30,85,423/- 6) The learned CIT(A) erred in not admitting the additional evidences filed by the appellant in this regard. 7) The appellant prays that the addition of Rs. 1,30,85,423/- made by the AO u/s. 68 and confirmed by the CIT(A), may be deleted. D) Addition on account of capital receipt - Rs. 2,92,589/- 8) The learned CIT(A) erred on facts and in law in confirming the order of the AO making an addition of Rs. 2,92,589/- as a revenue receipt. 9) The appellant prays that the addition made by the AO of Rs. 2,92,589/- and as confirmed by the CIT(A), may be deleted. E) General 10) The above Grounds of Appeal are without prejudice to one another and the appellant craves leave to add, alter, amend, delete or modify any of the above Grounds of Appeal." 2. We shall first advert to the addition made by the A.O under Sec.41(1) of the Act amounting to Rs. 7,51,308/- on account of creditors which were outstanding in the boo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the A.O in context of 4 parties viz. (i) Arvind M. Shah: Rs. 60,750/-; and (ii) Devyani Gonatra: Rs. 54,000/-; (iii) Jogesh Jasani: Rs. 3750/-; and (iv) Kamlesh N. Doshi: Rs. 14,375/-. As is discernible from the assessment order, as the assessee had failed to deduct tax at source on the interest payments made to the aforementioned parties, therefore, the same was disallowed by the A.O under Sec.40(a)(ia) of the Act. Interestingly, we find that all of the aforesaid 4 parties appear in the list of the 19 parties in respect of which addition had been made by the A.O under Sec.68 of the Act. As we have restored the addition made by the A.O under Sec. 68 to the file of the CIT(A) for fresh adjudication, therefore, in all fairness as the disallowance made by the A.O under Sec. 40(a)(ia) in respect of the aforesaid parties is inextricably linked to the addition made under Sec.68 by the A.O, therefore, the same also is restored to the file of the CIT(A). At this stage, we may herein observe that the amount of interest credited by the assessee in the accounts of the aforementioned 4 parties prima facie is not found to be in conformity with the amount that had been disallowed by the A.O un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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