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TMI Blog2022 (6) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... e evidences could not be produced in the proceedings before the AO, and reasons and justification for producing the evidences for the first time before ld. CIT(A). Secondly, the ld. CIT(A) has to pass a speaking order in writing as to his decision as to admission or refusal to admit additional evidences. Thirdly, ld. CIT(A) is obligated to forward these additional evidences to the AO for his examination / cross examination, as well for filing by AO of evidences in rebuttal thereof. No remand report from AO on the additional evidences submitted by assessee for the first time before ld. CIT(A), was called for by ld. CIT(A). These additional evidences/explanations filed by the assessee before ld. CIT(A) for the first time, remained unverified. Thus in nut-shell, what emerges from records before us, is that ld. CIT(A) did not comply with Rule 46A of the 1962 Rules. Under these circumstances, we are of the considered view that matter may be restored to the file of ld. CIT(A) for fresh adjudication on merits in accordance with law, after complying with Rule 46A. Assessee appeal is allowed for statistical purposes. - ITA No. 106/VNS/2019 - - - Dated:- 3-6-2022 - Shri Vijay Pal Rao, Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact, circumstances and the submissions of the appellant. That on facts, and in law, the initiation of proceedings u/s 271D are invalid and void ab initio. 5. That the appellant craves leave to add, amend or alter any of the grounds of appeal. 3. The assessee is an individual. During the course of assessment proceeding under Section 144/147 of the 1961 Act conducted by AO against the assessee, for the assessment year 2012-13, the AO noticed that the assessee has taken cash loan of Rs. 16,75,000/- from M/s. Industrial Power Solutions, Gorakhpur, during the year under consideration, which is in violation of provisions of Section 269SS of the Act. The show cause notice under Section 271D r.w.s. 269SS was issued by the AO on 04.04.2016, which was duly served on the assessee on 04.04.2016 . In response thereof, the assessee did not submitted any reply before the AO. The AO gave one more opportunity to the assessee, but the assesee did not comply with the said notice also. The AO levied penalty of Rs. 16,75,000/- u/s 271D, as the assessee has taken loan of Rs. 16,75,000/- in cash during the year under consideration, in violation of provisions of Section 269SS read with Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has received cash loan from her husband of Rs. 16,75,000/-, during the year under consideration . It was submitted that the written submissions have been filed by the assessee, before the tribunal . It was also submitted that assessee has shown reasonable cause and her case is covered under Section 273B of the Act read with Section 271D/269SS, wherein if assessee is able to show a reasonable cause, no penalty is exigible u/s 271D read with Section 269SS of the 1961 Ac. The Ld. counsel for the assessee submitted that cash loan of Rs. 16,75,000/- was taken by assessee from her husband, and since it is a transaction between close family members, Section 269SS will not be attracted . The assessee relied upon decision of Kolkatta tribunal in ITA Nos. 331 and 332/KOL/2010 in the case of Anant Himatsingka v. Addl. CIT . The assessee also relied upon decision of Kolkatta-tribunal in ITA Nos. 453 and 454/KOL/2016 in the case of Sri Nikhil Banik Majumdar v. JCIT. The assessee also relied upon decision of Kolkatta-tribunal in ITA Nos. 1839/KOL/2010 in the case of Manisha Prakash Amin v. JCIT. The assessee also relied upon judgment and order of Hon ble Punjab and Haryana High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 269SS, as the assessee did not furnished any details whatsoever before the AO. The assessee filed first appeal before ld. CIT(A), and came forward for the first time with explanation that the assessee had purchased residential house during the year under consideration, which she claimed is for self use. The assessee has submitted before ld. CIT(A) that she took loan of Rs.22,75,000/- from proprietary concern of her husband Shri Shyam Chandra Pandey, namely M/s Industrial Power Solution(IPS), for acquiring residential house. It is claimed that the said loan of Rs. 22,75,000/- advanced by IPS to the assessee, is duly reflected by her husband proprietary concern namely IPS in its audited accounts. The Balance Sheet of IPS as well tax-audit report were filed by assessee for the first time, before ld. CIT(A), although no explanations/details or evidences whatsoever were furnished by the assessee before the AO. The assessee has claimed that the transactions between husband and wife are not covered/hit by Section 269SS. The ld. CIT(A) although dismissed the appeal of the assessee and confirmed the penalty levied by AO against the assessee. No doubt, powers of ld. CIT(A) are co-terminu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r]) under clause (a) of sub-section (1) of section 251 or the imposition of penalty under section 271.] From the perusal of the orders of the authorities below, it transpires that the assessee has submitted additional evidences before ld. CIT(A) for the first time, but, however, ld. CIT(A) did not complied with Sub-Rule (1), (2) and (3) of Rule 46A of the 1962 Rules, and proceeded to adjudicate the appeal of the assessee, although same stood dismissed by ld. CIT(A). The purpose and purport of Rule 46A of the 1962 Rules, is that the assessee is required to explain and justify as to why the evidences could not be produced in the proceedings before the AO, and reasons and justification for producing the evidences for the first time before ld. CIT(A). Secondly, the ld. CIT(A) has to pass a speaking order in writing as to his decision as to admission or refusal to admit additional evidences. Thirdly, ld. CIT(A) is obligated to forward these additional evidences to the AO for his examination / cross examination, as well for filing by AO of evidences in rebuttal thereof. No remand report from AO on the additional evidences submitted by assessee for the first time before ld. CIT(A), w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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