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TMI Blog2022 (3) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... tors and the genuineness of the transaction and the AO has not preferred to file any comment then there is no scope of interference into the findings returned by the Ld. CIT(A). In the appeal in hand also, as in spite of opportunity by the Ld. First Appellate Authority, calling for comments on merits of the additional evidence, the Ld. AO failed to respond, now before this Tribunal, the revenue cannot succeed. Addition for failure of assessee to reconcile the amounts in record to the transactions - HELD THAT:- This issue with regard to validity of addition is restored to Ld. FAA for deciding the issue afresh after granting adequate opportunity of hearing to both the parties and by passing a speaking order on the issue. - ITA No.4266/Del/2018 - - - Dated:- 15-3-2022 - Sh. Anil Chaturvedi, Accountant Member And Sh. Anubhav Sharma, Judicial Member For the Revenue : Ms. Suman Malik, Sr. DR For the Assessee : Ms. Rano Jain, Adv. ORDER PER ANUBHAV SHARMA, JM: This appeal has been preferred by the revenue against the appellate order dated 26.03.2018 u/s 250(6) of the Income Tax Act, 1961 (hereinafter referred to as The Act ) passed by Commissioner of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leting the addition of ₹ 1, 14,754/- made by the AO on account of difference in bank reconciliation ignoring the fact that the assessee has produced no evidence in support of his claim. 3. On facts and in the circumstances of the case, Ld. CIT [A] was not correct in admitting the additional evidences ignoring the fact that the conditions laid down under sub clauses [a), (b), (c) and (d) of Sub Rule 46A of Income Tax Rules, 1962 are not fulfilled. 4. The appellant craves leave for reserving the right to amend, modify, alter, add or forego any ground(s) of appeal at any time before or during the hearing of this appeal. 7. It is submitted by the Ld DR and conceded by Ld AR that ground no. 1 and 3 are interconnected. As with regard to ground no 1 and 3, on behalf of the revenue, Ld. DR submitted that primarily there is a perversity in the impugned order of Ld. CIT(A) on the basis of taking additional evidences without giving sufficient opportunity of its rebuttal to the Ld. Assessing Officer. It was submitted that the Ld. First Appellate Authority had rushed up the matter in the Month of February when otherwise the tax authorities are engaged in other time barring w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .3 She also relied upon judgment of Bombay High Court in Commissioner of Income Tax vs. Suretech Hospitals and Research Centre Ltd. 2007(6) TMI 522 (Bombay High Court) justifying invoking of Rule 46A (4) of the IT Rules. 8.4 She relied the judgment in the Commissioner of Income Tax(Appeals) vs. M/s. Sangu Chakra Hotels Pvt. Ltd. 2016 (9) TMI 598 (Madras High Court) to contend that if after giving opportunity on additional evidence, nothing is submitted in objections it will not be opened to the party aggrieved to raise any objection as to its admissibility at a subsequent stage. 8.5 Ld. Counsel also relied the judgment of Hon ble P H High Court in the Commissioner of Income Tax vs. Mukta Metal Works 2011(2) TMI 250 (P H) to contend that additional evidence can be allowed in the interest of justice if the same is authentic and necessary for the decision of the issue raised before the Tribunal. 8.6 It was also contended on the basis of Pr. Commissioner of Income Tax- 7 vs. M/s. Pranidhi Holdings Pvt. Ltd (Supra) that the failure of AO to comment upon material produced before the CIT(A) prima facie resulted in the discharge of the initial burden which rests upon the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as given reasonable opportunity to the Ld. AO calling for response on not only the question of admissibility of the additional evidence but also on the merits of the additional evidence, upon the additions made. 13. A presumption of truth is attached to the proceedings and records prepared before public authorities but the same is rebuttable. In the case in hand the Ld. Assessing Officer had observed in para no. 7 of his order that assessee had failed to produce the details/ documents or any other adequate supporting evidence with regard to the verification of creditors shown in balance sheet. This was rebutted by the assessee by filing an affidavit before the Ld. First Appellate Authority that on 23.09.2016 the husband of assessee had appeared before the Ld. AO who on the pretext of being busy with IDS work had not taken the evidence of assessee on record. The copy of the same being on record before the Tribunal at page no. 41 to 44 of the paper book. The affidavit of remained uncontroverted from the Ld AO, in any form. That being so there was no infirmity in admitting additional evidence by the Ld. First Appellate Authority, as assessee was not given due opportunity to file ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Delhi High Court has held that when assessee has brought on record all the documents necessary to establish the creditworthiness of the creditors and the genuineness of the transaction and the AO has not preferred to file any comment then there is no scope of interference into the findings returned by the Ld. CIT(A). In the appeal in hand also, as in spite of opportunity by the Ld. First Appellate Authority, calling for comments on merits of the additional evidence, the Ld. AO failed to respond, now before this Tribunal, the revenue cannot succeed. 20. In view of the above this bench finds no reasons to interfere with the order of Ld. FAA and grounds no 1 and 3 are not sustainable. 21. As with regard to ground no 2 for additions to the extent of 1,14,754/- for failure of assessee to reconcile the amounts in record to the transactions the M/s. Orient Links Pvt. Ltd, as Ld AR has fairly conceded that there are no findings on this aspect by FAA, she has no objection if the matter is restored to the Ld. FAA for findings on this left over issue. 22. Consequently, ground no. 2 be considered as allowed, for statistical purpose. The issue with regard to validity of addition o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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