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TMI Blog2020 (10) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... to lead evidence should not be held against the assessee unless it is known to be incorrect or suggested to be incorrect or there was evidence to suspect that the evidence was fabricated. In the present case no such adverse inference has been drawn by the Ld. CIT (A). No prohibition for admitting the additional evidence at the appellate stage, though, the same may pertain to a period after completion of the assessment proceedings and the only condition is that the Revenue should not be prejudiced and that the AO should be given a reasonable opportunity to rebut the additional evidence. Audited financial statements and audited report could not be filed during the course of assessment proceedings due to factors entirely beyond the control of the assessee, in the interest of substantial justice, the AO should de-novo make the assessment after duly considering the audited financial statements and the audit report of the assessee - Appeal of the assessee stands allowed for statistical purposes. - ITA No.5165/Del/2016 - - - Dated:- 30-9-2020 - Shri G.S. Pannu, Vice President And Shri Sudhanshu Srivastava, Judicial Member For the Appellant : S/Sh. Kanchua Kaushal And Ris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e did not appear for the hearings despite being notices issued. 2.4 Aggrieved, the Assessee preferred an appeal before the Tribunal. The Tribunal took note of the fact that notices for hearing were issued by the Ld. CIT (A) at a wrong address and, thus, the notices were not received by the Assessee. In view of the same, the matter was remanded back to the file of Ld. CIT (A) vide order dated February 10, 2010 with a direction to send the notices at the correct address and decide the issue on merits. 2.5 Thereafter, in the second round of appellate proceedings before the Ld. CIT (A), the Assessee filed an application under Rule 46A of the Income Tax Rules, 1962 dated February 24, 2015 for furnishing additional evidences i.e. audited financial statements, tax audit report, Form 3CEB, transfer pricing documentation, computation of income basis audited financial statements. The Ld. CIT (A), on receipt of application for admission of additional evidence, requisitioned a remand report from the Assessing Officer. The Assessing Officer objected to admission of the additional evidence. Subsequently, the Assessee Company filed another request letter dated March 24, 2015 for admissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.3 without appreciating that the additional evidence should be considered in the interest of justice; 1.4 by observing that additional evidence does not mean the new evidence created after the conclusion of assessment proceedings ; 1.5 without appreciating that action by his predecessor of seeking of the remand report from the Ld. AO results in admission of the evidence. 2. Without prejudice to the above grounds, the Ld. CIT(A) has on the facts in the circumstances of the case and in law, erred in not allowing the depreciation claim of INR 3,70,41,482 as per tax audit report 2.1 by observing that revised claim of depreciation is not permissible without filing a revised return of income; 2.2 by ignoring the provisions of the Income Tax Act, 1961 ( Act ) that claim of depreciation has to be mandatorily allowed whether or not claimed by the assessee. 3. Without prejudice to the above grounds, the Ld. CIT (A) has on the facts in the circumstances of the case and in law, erred in not allowing the depreciation claim of INR 2,54,10,470 as claimed in the original Return of Income. 4. Without prejudice to the above grounds, the Ld. CIT (A) erred in confirmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional evidence, had called for a remand report from the Assessing Officer. The Ld. Authorized Representative also submitted that the remand report was submitted by the Assessing Officer. It was submitted that, thereafter, the Ld. CIT (A) directed the Assessing Officer to make a reference to the Transfer Pricing Officer (TPO). However, there was a change in the incumbent to the office of the Ld. CIT (A) who refused to accept his predecessor s directions of making a reference to the TPO and, thus, the additional evidences filed by the assessee were refused to be admitted by observing that since the new evidences were created after the conclusion of the assessment proceedings and since it was a no accounts case, a reference to the TPO also was not required. The Ld. Authorized Representative submitted that the assessee had a sufficient cause in not filing these documents earlier. He submitted that the assessee had also filed an application with the Company Law Board on 15th March, 2011 requesting compounding of offences under the Companies Act, 1956 for not filing the audited annual accounts wherein it had been submitted that the reason for the delay were beyond the control of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to submit audited accounts and the audit report during the course of assessment proceedings was entirely out of control of the assessee company. We also note that the correct income of the assessee can be determined only on the basis of the audited financial results and, therefore, it would be incorrect to shut out an assessee in the process of administration of justice from leading evidence to prove its case. The earlier inability to lead evidence should not be held against the assessee unless it is known to be incorrect or suggested to be incorrect or there was evidence to suspect that the evidence was fabricated. In the present case no such adverse inference has been drawn by the Ld. CIT (A). We also note that the CBDT Instruction No.14 (XL-35) dated 11th April, 1955 has directed that one of the duties of the Officers of the Department is to assist the tax payers in a reasonable way, particularly in the matter of claiming and securing reliefs. We also note that there is no prohibition for admitting the additional evidence at the appellate stage, though, the same may pertain to a period after completion of the assessment proceedings and the only condition is that the Revenue sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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