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TMI Blog2018 (6) TMI 1754X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee before him in support of his claim. AO may decide the issue after making such enquiries as necessary as deem fit and required further evidence as required in the interest of justice. Accordingly, entire assessment is set-aside to the file of the AO for denovo consideration after affording proper opportunity of being heard. - 700/Ahd/2016/SRT, 3093/Ahd/2014/SRT, 3094/Ahd/2014/SRT - - - Dated:- 5-6-2018 - SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER For the Assessee : Shri P.M.Jagasheth, CA For the Revenue : Shri Srinivas T. Bidari, CIT-DR ORDER PER O. P. MEENA, ACCOUTANT MEMBER: 1. These three appeals filed by Assessee are directed against the order of the Ld.Commissioner of Income Tax(Appeals)-1, [CIT(A)], Surat dated 26.02.2016 for the assessment year 2007-08 and two orders common date 02.09.2014 for the assessment years 2008-09 and 2009- 10 which in turn has arisen from the order passed by the Income Tax Officer, Ward-5(4), Surat (in short the AO ) u/s.143(3) r.w.s. 147 dated 28.03.2014 for the assessment year 2007-08, and under section 144 read with section 147 dated 22.03.2013 for the assessment year 2008-09, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and nonappearing In appellant proceedings for A.Y. 2007-08 and non-appearing in assessment proceedings for A.Y. 2008-09 and 2009-10. 4. On the other hand, the ld.Senior Departmental Representative (Sr.DR) opposed to the admission of the additional ground as well as additional evidences, however, did not raise serious objection to it. 5. We have considered the rival submissions of both the parties, looking to the facts and circumstances of the case and law and in the interest of justice we are inclined to admit that the additional ground of appeal in the light of decision of Hon'ble Supreme Court in the case of National Thermal Company Ltd. vs. CIT (1998) 229 ITR 383 (SC) wherein it was held that additional ground of appeal can be admitted where the issue involved is pure question of law not involving any investigation of facts and also the decision of Hon'ble Madras High Court in the case of CIT vs. Indian Express (Madhurai) Pvt. Ltd. (1983) 140 ITR 705 (Mad) wherein it was held as under : It is well-settled now that while exercising its appellate jurisdiction, the Tribunal need not confine itself to the grounds which are set forth in the appeal memorandum or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 351 ITR 57 (Del): 197 Taxman 128(Del) : 51 DTR 241 (Del) wherein it was observed as follows: 13. The aforesaid case law clearly lays down a neat principle of law that discretion lies with the Tribunal to admit additional evidence in the interest of justice once the Tribunal affirms the opinion that doing so would be necessary for proper adjudication of the matter. This can be done even when application is filed by one of the parties to the appeal and it need not to be a suo motu action of the Tribunal. The aforesaid rule is made enabling the Tribunal to admit the additional evidence in its discretion if the Tribunal holds the view that such additional evidence would be necessary to do substantial justice in the matter. It is wellsettled that the procedure is handmade of justice and justice should not be allowed to be choked only because of some inadvertent error or omission on the part of one of the parties to lead evidence at the appropriate stage. Once it is found that the party intending to lead evidence before the Tribunal for the first time was prevented by sufficient cause to lead such an evidence and that this evidence would have material bearing on the issue which needs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the assessee to make good his submissions with relevant evidence to the satisfaction of Revenue Authorities by setting aside the appeal to the file of the AO. Hence, in all fairness, the learned counsel for the assessee does not have any objection to the issue if it is restored to the file of the Assessing Officer for a de-novo consideration. 11. The learned D.R. has relied on the order of Revenue Authorities. 12. We have heard the rival contentions of both the parties. We find that the assessment in both the years have been passed ex-parte under section 144 read with section 147 of the Act by the AO. The AO though afforded number of opportunities but the assessee has failed to respond the same. Therefore, we find that books of accounts were seized by DRI and Shri Hari Prasad Agarwal was under treatment for chronic liver paveuse ajmal diseases (Evidence filed PB 55 to 59) and has ultimately passed away. Therefore, there was medical emergency in the family, due to which, the assessee could not appear before the Assessing Officer for A.Y. 2007-08 and nor makes compliance on appeal. The ld.CIT (A) has also decided these appeals without admitting additional evidences and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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