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TMI Blog2020 (4) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... law. Ground No.1 of additional ground is allowed for statistical purposes. - ITA No.130/CTK/2014 - - - Dated:- 10-2-2020 - Shri Chandra Mohan Garg, Judicial Member And Laxmi Prasad Sahu, Accountant Member For the Assessee : Shri P.R.Mohanty, AR For the Revenue : Shri S.M.Keshkamat, CIT DR ORDER PER C.M.GARG,JM This is an appeal filed by the revenue against the order dated 2.1.2014 of the CIT(A), Cuttack for the assessment year 2009-2010. Application of the appellant/revenue dated 16.8.2019 seeking admission of additional grounds. 2. We have heard the rival submissions on the application of the revenue, wherein, the revenue has sought admission and consideration of following additional grounds of appeal: (i) Whether in the facts and circumstances of the case, the Ld. CIT(A) justified to decide the appeal of the assessee on merit without disposing the assessee's application under Rule 46A in terms of decision of Hon'ble Jodhpur High Court in the case of ACIT Vs. Mohar Singh- 2009 (16 taxmann.com 37) ( 49 SOT 129) (137 TTJ 654). (ii) In the facts and circumstances of the case while deleting the addition u/s. 68 of the Act, the Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal as additional ground and thus, same may kindly be admitted for consideration and adjudication. 6. On careful consideration of the rival submissions, we are of the considered opinion that Hon ble Supreme Court in the case of NTPC (supra) held that any legal ground which can be decided on the basis of facts already available on record should be admitted for adjudication. The aforesaid additional ground of appeal raises a purely legal issue which does not require any fresh investigation into facts; facts already being on records. 7. The main controversy agitated by the appellant/revenue revolves around non-compliance of Rule 46A by the ld CIT(A) and this ground of the revenue is a legal ground, which can be agitated on the basis of material already available on record without any extraneous documents or exercise beyond the record. Compliance of Rule 46A of I.T.Rules is a mandatory by the ld CIT(A) while admitting any new documents which were not submitted during the assessment proceedings before the AO. Further the additional ground seeks to raise purely a question of law viz., being challenging the order of the ld CIT(A) on account of non-compliance of Rule 46A of I.T.Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment proceedings. Therefore, there is no violation of Rule 46A of I.T.Rules. 11. Placing rejoinder to above, ld CIT DR submitted that on the request of ld A.R. assessment records were called for and the same were inspected by ld counsel for the assessee before the Bench and he failed to find any documents listed in the enclosures at Sl. 1 to 8 at page10 of the impugned order. Therefore, it can be safely presumed that these documents were not placed before the AO and the same were additional evidences submitted for the first time before the ld CIT(A) during the first appellate proceedings. Ld CIT DR also submitted that Rule 46A of I.T.Rules empowered the ld CIT(A) to call upon any documentary evidences and explanation from the assessee, which is necessary for adjudication of the appeal before him but it is also incumbent upon the ld CIT(A) to confront the documents and evidences filed by the assessee to the AO for examination and verification and the AO should also be allowed to submit the remand report thereon. Since the same was not done, it makes the ld CIT(A) order is bad in law and not-sustainable. 12. On careful consideration of rival submissions, undisputedly, on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est of the AO) under clause(a) of sub-section (1) of section 251 or the imposition of penalty under section 271. 14. It is pertinent to note that the main legal ground and contention of the appellant/revenue is that the CIT (A) has admitted fresh evidence in the form of enclosures at Sl. No.1 to 8 mentioned at page 10 of the impugned order in violation of Rule 46A of I.T.Rules, 1962. A bare perusal of the Rule 46A of the I.T.Rules, 1962 clearly shows that the assessee is not entitled to produce fresh oral or documentary evidence, as a matter of right, in appeal. However, under certain circumstances as mentioned in clause (a)(b), (c) and (d) of sub-rule 1 of Rule 46A, additional evidence can be filed. Sub-rule (2) of Rule 46A provides that no evidence shall be admitted under sub-rule (1) unless the authority admitting it records in writing the reasons for its admission. Sub-rule (2) casts a duty on the authority concerned to record reasons in writing for admission of the additional evidence. Under sub-rule (3), the further requirement is that the appellate authority shall not take into account any evidence produced under sub-rule (1) unless the assessing authority has been allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi in the case of Jaidka Woolen Hosiery Mills Pvt Ltd Anr (supra) is concerned, in this case, it was held that the assessee filed reply before the AO in which several details as per query of AO were furnished at assessment stage including copy of cash book and all details were furnished before the AO including production of books of account. The ld CIT(A) called for production of books of account, ledger and vouchers at appellate stage for examination, there was nothing wrong to examine the books of account as per rule 46A(4) of the Rules. These facts are also not similar to the facts and circumstances of the present case. As we have already noted above that the ld CIT(A) did not invoke provisions of sub-rule (4) of Rule 46A, therefore, both the orders of the Tribunal as relied upon by ld counsel for the assessee, cannot be applied in the favour of the assessee in the peculiar facts and circumstances of the present case. 19. In view of foregoing discussion, keeping in view the totality of the facts and circumstances of the present case, we reach to a logical conclusion that the ld CIT(A) has admitted the additional evidences/enclosures at Sl. No.1 to 8 stated at page 10 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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