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TMI Blog2016 (8) TMI 1461X X X X Extracts X X X X X X X X Extracts X X X X ..... nd fulfill the requirements of sub- Rules (2) of Rule 46A. However, having so concluded, we find it was incumbent upon the CIT(A) thereafter, in terms of sub-Rule (3) of Rule 46A to confront the evidences to the AO so as to allow him an opportunity to rebut the evidences placed on record which opportunity admittedly has not been provided. We are of the view that the CIT(A) after over-ruling the objection of the AO on the admissibility of the fresh evidences was required to communicate the decision to admit the evidence to the AO and provide him a reasonable opportunity to rebut the same. In the absence of any such exercises the order is in violation of the Statutory Rules and is open to the challenge of being perverse. Considering the submission of the parties before the Bench and the precedent relied upon the impugned order is set aside and allowing the departmental ground, the issue is restored back to the file of the CIT(A) to address the procedural lapses and pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the objections and considering the fresh evidences, the CIT(A) granted part relief and sustained the addition only to the extent of ₹ 2,50,000/-. The Revenue is aggrieved by the same. 4. The Ld. Sr. DR inviting attention to the impugned order submitted that the CIT(A) having concluded that the additional evidences were to be admitted erred in not confronting the same to the AO. The issue it was submitted is well-settled. In the circumstances, it was his prayer that the evidences may be confronted to the Assessing Officer for which purposes it may be restored. 5. The Ld. AR appearing on behalf the assessee submitted that the assessee had adequately explained the reasons which gave cause to the need for filing of fresh evidences. The situation arose it was submitted on account of the assessee's illness thus the notices which may have been sent remained uncomplied with. It was his submission that he had no objection if the issue is restored. However, objection was posed to restoring the issue to the Assessing Officer as the procedural lapse if any it was submitted has occurred at that stage of the CIT(A). 6. We have heard the rival submissions and perused the material avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for filing fresh evidences and the fact that the "Agreement to Sell" "Possession letter" and "Power of Attorney in favour of the seller" were crucial and material evidences required to be considered for adjudicating upon the issue admitted the evidences. The decision to admit the evidences is upheld as facts justifying admission of fresh evidences namely the assessee remaining unavailable at her address for reasons beyond her control i.e. health reasons and thus did not receive the notices which may have been sent have been duly noted and thus we find fulfill the requirements of sub- Rules (2) of Rule 46A. However, having so concluded, we find it was incumbent upon the CIT(A) thereafter, in terms of sub-Rule (3) of Rule 46A to confront the evidences to the AO so as to allow him an opportunity to rebut the evidences placed on record which opportunity admittedly has not been provided. 6.3. We are of the view that the CIT(A) after over-ruling the objection of the AO on the admissibility of the fresh evidences was required to communicate the decision to admit the evidence to the AO and provide him a reasonable opportunity to rebut the same. In the absence of any such exercises the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be relied upon to contend that the procedural requirements of Rule 46A need not be complied with. Their Lordships have held that if such a plea of the assessee is accepted then it would reduce Rule 46A to a dead letter because it would then be open to every assessee to furnish additional evidence before the CIT (A) and thereafter contend that the evidence should be accepted and taken on record by the CIT (A) by virtue of his powers of enquiry under sub-Section (4) of Section 250. The Court held that this would mean in turn that: (i) the requirement of recording reasons for admitting the additional evidence; (ii) the requirement of examining whether the conditions for admitting the additional evidence are satisfied; and (iii) the requirement that the assessing officer should be allowed a reasonable opportunity of examining the evidence etc. can all be thrown to the winds, a position which the Hon'ble Court held was wholly unacceptable and may result in unacceptable and unjust consequences. The Hon'ble Court held that the procedural requirements mentioned in the Rule must be strictly complied with so that the Rule is meaningfully exercised and not exercised in a routine or cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CIT (A) and a case where the CIT (A), without being prompted by the assessee, while dealing with the appeal, considers it fit to cause or make a further enquiry by virtue of the powers vested in him under sub-Section (4) of Section 250. It is only when the CIT(A) exercises his statutory power suo moto under the above sub-section that the requirements of Rule 46A need not be followed. On the other hand, whenever the assessee who is in appeal before him invokes Rule 46A, it is incumbent upon the CIT (A) to comply with the requirements of the Rule strictly. 6.4. In the facts of the case before the Hon'ble High Court it was found that the CIT(A) had recorded that the additional evidence should be admitted because the assessee was prevented by adducing them before the assessing officer. The said observation it was held would take care of clause (c) of sub-rule (1) of Rule 46A. The observation of the CIT (A) it was held would also take care of sub-rule (2) under which he is required to record his reasons for admitting the additional evidence. Thus, the requirement of sub-rules (1) and (2) of Rule 46A it was held had been complied with. However, the Hon'ble Court found that sub-rule (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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