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TMI Blog2023 (3) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... b) Assessee was prevented by sufficient cause from producing the evidence which he was called upon by the Assessing Officer; or (c) assessee was prevented by sufficient cause from producing before the Assessing Officer which is relevant to any ground of appeal; or (d) The Assessing Officer has made the order without giving sufficient opportunity to the assessee to adduce evidence relevant to any ground of appeal. Hence, we note that ld CIT(A) did not deal with these exceptions of Rule 46A, therefore, ld CIT(A) accepted the additional evidences in violation of Rule 46A of the Rules, which is not tenable in law. CIT(A) erred in admitting that source of investment of pound sterling for share of company namely Flightcare Ltd., in the name of Shri Nurudin Ajania i.e., husband of the assessee - there was no name of the assessee i.e., Smt. Shehnaz Nurdin Ajania. Besides, the learned CIT(A) also erred in admitting that source of investment of Rs.50,00,000/- as opening balance and other credits in bank account was jointly. We note that in the remand report, the assessing office mentioned that there is no details received from the Indian Banks. The assessing officer further mentioned that de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to time vide orders dated 23.03.2020, 27.04.2021 and 23.09.2021 in Miscellaneous Application No.665 of 2021 in SMW(C) No.3 of 2020. As per latest order dated 23.09.2021 of the Hon'ble Supreme Court, in computing the period of limitation for any suit, appeal, etc., the period from 15.03.2020 till 02.10.2021 shall be excluded. Consequently, the balance period of limitation remaining as on 15,.3.2021, if any, shall become available with effect from 03.10.2021." 3.Therefore, Ld AR contended that Bench may be considered the delay in filing the appeal before the Tribunal. 4. On perusal of the condonation petition and in view of the concession given by the Ld. DR for the Revenue ( ld AR for the assessee raised no objection), we condone the delay and admit the Revenue`s appeal for adjudication. 5. The grounds of appeal raised by the Revenue are as follows: "(1) On the facts and circumstances of the case and in law, the learned CIT(A) erred in admitting the additional evidences in contravention of Rule 46A of the Income-tax Rules, 1962 without appreciating the fact that the assessee failed to justify that her case was falling within the exception clause to Rule 46A(1) of the I.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,000/- pound sterling i.e. Rs.3,55,25,000/- for share of company namely Flightcare Ltd., in the name of Shri Nurudin Ajania i.e., husband of the assessee. But, there was no name of the assessee i.e., Smt. Shehnaz Nurdin Ajania. (6) On the facts and circumstances of the case and in law, the learned CIT(A) erred in admitting that source of investment of Rs.50,00,000/- as opening balance and other credits in bank account was jointly. But, there was no name of the assessee i.e, Smt. Shehnaz Nurdin Ajania. (7) On the facts and circumstances of the case and in law, the learned CIT(A) erred in deleting addition of Rs.4,05,00,000/- (3,05,00,000 + 50,00,000/-) made on account of unexplained investment u/s 69 of the I.T. Act." 7. The original ground of appeals and revised grounds of appeal of Revenue are interlinked and mixed therefore, we shall adjudicate them together. 8. Succinct facts, as per assessment order, are as follows. During the assessment proceedings, the assessing officer observed that as per information available with the Department, assessee had made investment in purchase of Mutual Fund for amounting to Rs.4,05,00,000/- during the financial year 2010-11 relevant to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnish the requisite details on or before 24.12.2018. The relevant portion of final show- cause notice issued on 22.12.2018 is mentioned by AO in assessment order page no.2 and 3, which is reproduced below: "Please refer to the above, 2. In order to complete the assessment of your case, this office has granted you a number of opportunities vide various statutory notices as tabulated as under, per the provisions of the Income Tax Act, 1961 (hereinafter 'the Act') as detailed below: Sr.No. Particulars of notice issued Issuance date 1 Notice u/s 148 of the Act 28.03.2018 2 Notice u/s 142(1) of the Act along 18.09.2018 Notice with Annexure 26.10.2018 3 Show cause notice 10.12.2018 In response to the aforesaid notices, you have neither made compliances before the undersigned nor furnished any written submission to clarify your position to finalize your assessment proceedings for the year under consideration. Even after granting so many opportunities as mentioned above, nothing has been hear from your side. You have failed to furnish any details, whatsoever, to the this office. Still further, no return of income for the above mentioned year has been filed by y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer by admitting the additional evidences under Rule 46A of the Income-Tax Rules, 1962. Aggrieved by the order of Ld. CIT(A) the Revenue is in appeal before us. 12. Before us, Shri H.P.Meena, Ld. CIT-DR submits that Assessing Officer has already noted detailed findings and came to the conclusion that assessee has not furnished any explanation in respect of investment made, therefore addition made by the assessing officer must be upheld. During the appellate proceedings, the assessee has raised the ground challenging the reopening of the assessment under section 147 of the Act, however there is no adjudication by ld CIT(A) in his appellate order. 13. The Ld. CIT-DR further argued that order of Ld. CIT(A) is not acceptable. The order was passed by Assessing Officer u/s 144 of the I.T. Act i.e. best judgment assessment. The assessee was granted sufficient opportunities of being heard by the Assessing Officer. However, for want of any reply or communications from the assessee, the Assessing Officer has made assessment order confining to the provisions of section 144 of the Act. On appeal by assessee, the ld CIT(A) has admitted additional evidences in violation of Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bench to set aside the order of ld CIT(A) and remit the issue back to the file of the assessing officer for fresh adjudication. 16. On the other hand, Shri Gaurav Kabra, Ld. Counsel for the assessee defended the order passed by Ld. CIT(A). The ld Counsel submits that there is no violation of Rule 46A of the Rules. He pointed out that assessee was not technologically adept and did not regularly access the e-mails and therefore the notices were not complied to. It is the case of the assessee that the application under Rule 46A should be accepted if the assessee had reasonable cause to not furnish the details during the assessment proceedings. 17. The ld Counsel further pointed out that the investments made in mutual funds were joint investments by the assessee and her spouse, that she was a second holder, that she was resident of Kenya and had earned income from the sources in Kenya, that she had no source of income in India during the year under consideration, that she and her husband jointly held 80% of the total share of the company, M/s. Flightcare Ltd. which is a foreign company incorporated in UK. Therefore, ld Counsel prays the Bench that order passed by ld CIT(A) may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground, is factually incorrect. The ld CIT(A) has not explained in his order that which issue he has adjudicated by way of additional ground. Further, ld CIT(A) did not explain in his order the exceptional clause (a) to (d) of Rule 46A, which are:(a) the Assessing Officer has refused to admit evidence(s); or (b) Assessee was prevented by sufficient cause from producing the evidence which he was called upon by the Assessing Officer; or (c) assessee was prevented by sufficient cause from producing before the Assessing Officer which is relevant to any ground of appeal; or (d) The Assessing Officer has made the order without giving sufficient opportunity to the assessee to adduce evidence relevant to any ground of appeal. Hence, we note that ld CIT(A) did not deal with these exceptions of Rule 46A, therefore, ld CIT(A) accepted the additional evidences in violation of Rule 46A of the Rules, which is not tenable in law. 21. We note that learned CIT(A) erred in admitting that source of investment of 5,00,000/- pound sterling i.e. Rs.3,55,25,000/- for share of company namely Flightcare Ltd., in the name of Shri Nurudin Ajania i.e., husband of the assessee. However, there was no name of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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