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TMI Blog2023 (4) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... oduction of any document to enable him to dispose of the appeal. The exercise of power by the CIT(A) in allowing admission of the exemption Order in support of the Appellant's case, cannot be said to be arbitrary or perverse exercise to warrant interference. CIT(A) having held that the additional evidence in the form of order of exemption, goes to the very root of the ground of Appeal i.e. the charge of the E.T. in the Assessee's case, the CIT(A) was justified in its approach in admitting such exemption Order while allowing the Appeal. The requirements for admitting additional evidence stands satisfied. - TAX APPEAL NOS. 74 & 75 OF 2006 - - - Dated:- 17-3-2023 - M. S. KARNIK VALMIKI SA MENEZES, JJ. For the Appellant : Ms. Susan Linhares, Standing Counsel. For the Respondents : Mr. D. Pangam, Advocate with Mr. S. Priolkar, Advocate. JUDGMENT (Per M. S. Karnik, J) 1. These Appeals are disposed of by a common order as common issues are involved. Tax Appeal No. 74 of 2006 relate to the Assessment Year 1996-97. Tax Appeal No. 75/2006 relate to the Assessment Year 1995-96. 2. These Appeals were admitted on the following substantial question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1992. 8. The CIT(A) by Order dated 23.04.2002, relying on the Order passed by the Director General (Exemption) Kolkata, dated 31.07.2001, which was produced before him for the first time, held that the Assessee is out of the mischief of Section 3 in view of the proviso to Section 4(a) of the ET Act. 9. The Department filed Appeal before the ITAT challenging CIT(A) Order on several grounds, inter alia, that the CIT(A) ought not to have admitted new evidence being Order dated 31.07.2001 and, secondly, that the approval was for only one Assessment year 1991-1992. The ITAT, by the impugned Order dated 07.04.2006, opined that the CIT(A) has rightly held that the Assesee is not liable to the charge of Expenditure Tax for the Assessment year in view of the Order dated 31.07.2001 issued by the DG (Exemption) read with proviso 4(a) of the E.T. Act. 10. Learned Counsel Ms. Susan Linhares, for the Department invited our attention to the provisions of Rule 46-A of the Income Tax Rules, 1962. It is submitted that none of the conditions entitling the Appellant to produce new evidence before the CIT(A) are satisfied. It is further submitted that the Tribunal ought to have considered tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Section 80-IA(5)(ii) and 80-IA(1)(iii) read with Rules 18BBC of the Income Tax Act, 1962. CIT(A) admitted the exemption Order in evidence entitling the Assessee the benefit of such order. ITAT confirmed the view taken by CIT(A). In the light of the substantial question of law as framed by this Court, the only aspect that needs to be considered is whether the CIT(A) was justified in admitting new evidence being the exemption Order dated 31.07.2001 and whether such admission of new evidence satisfied the requirements of Rule 46-A(1) of the Income Tax Rules, 1962. 14. The exemption Order dated 31.07.2001 was passed after the Assessment Order came to be made by the AO. During the pendency of the Appeal before the CIT(A), the Appellant requested that such exemption Order dated 31.07.2001 be taken into consideration in support of the Appellant's case. The exemption Order was the additional evidence. At this juncture, it is pertinent to re-produce Section 46-A of the IT Rules. The same reads thus : [Production of additional evidence before the Deputy Commissioner (Appeals)] [and Commissioner (Appeals)]. 46-A(1) The appellant shall not be entitled to produce befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption Order enures to the benefit of the Assessee. The findings of the CIT(A) reveals that the CIT(A) was conscious of the provisions of Rule 46-A(1)(c) of the IT Rules. It is observed by him that the exemption Order dated 31.07.2001 is admitted under Rule 46-A(1) (c) of the IT Rules as it goes to the very root of the grounds of appeal i.e. the charge of Expenditure Tax in the Assessee's case. CIT(A) held that as a result of the exemption Order, the Assessee's case is taken out of the mischief of Section 3 by first proviso to Section 4(a) of the E.T. Act and hence the Assessee is not liable to be charged of E.T. for Assessment of years under appeal. 16. It is further pertinent to mention that even the Tribunal has observed that upon issuance of the exemption Order, what was expected by the AO was done by the First Appellate Authority. The Tribunal observed that the validity of the exemption letter is not disputed. The Tribunal has thus held that the CIT(A) has rightly implemented the Order of the Director General (Exemption). 17. We see no reason to interfere with the view taken by the Tribunal. After the issuance of the exemption Order, even if the matter were to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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