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TMI Blog2009 (9) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee at the appellate stage, the Assessing Officer should have been given an opportunity to verify/rebut the evidence. This submission of the revenue was rejected by the ITAT on the ground that Rule 46A (4) does not warrant giving of any opportunity to the Assessing Officer. It also held that the power to admit additional evidence under Section 250 could not be circumscribed by the rules. – order of the ITAT set aside. - 38 of 2005 - - - Dated:- 8-9-2009 - Deepak Gupta and V.K. Ahuja, JJ. Mrs. Vandana Kuthiala, Advocate, for the Appellant. Mr. K.D. Sood, Advocate, for the respondent. JUDGMENT Deepak Gupta, J. - This appeal has been admitted on the following substantial questions of law:- 1. Whether on the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s compared to the previous year, the net sales and miscellaneous income of the company had decreased from Rs.2,62,41,138/- to Rs.1,29,37,683/-, whereas the expenses under the head "Other Charges" in the profit and loss account had only decreased from Rs.58,63,250/- to Rs. 44,24,830/-. According to the Assessing Officer, there should have been a pro rata decrease in these charges and he accordingly made an addition of Rs.12,50,000/-. The assesseee filed an appeal before the Commissioner (Appeals).The assessee also produced books of accounts and other materials to show that it had taken a loan from M/S J.S. Enterprises to pay the electricity dues. Further according to the assessee, there could not have been a pro rata decrease in the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) to examine the evidence or document or to cross-examine the witness produced by the appellant, or (b) to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the appellant. (4) Nothing contained in this rule shall affect the power of the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) to direct the production of any document, or the examination of any witness, to enable him to dispose of the appeal, or for any other substantial cause including the enhancement of the assessment or penalty (whether on his own motion or on the request of the Assessing Officer) under clause (a) of sub-section (1) of Section 251 or the imposition of penalty under Section 271. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this evidence because of his non-appearance before the Assessing Officer which was explained by him satisfactorily before the Commissioner (Appeals), the Commissioner was justified in permitting the assessee to lead additional evidence. However, once he permitted the assesee to lead evidence in terms of sub-rule (3) referred to hereinabove, he was bound to give an opportunity to the Assessing Officer to examine the documents and also an opportunity to produce any evidence to the contrary if he so desired. This is also in accordance with the rule of natural justice and we are of the opinion that this provision is a mandatory provision and non- compliance of the same would vitiate the order itself. We, therefore, allow the appeal of the rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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