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TMI Blog2024 (6) TMI 1350X X X X Extracts X X X X X X X X Extracts X X X X ..... ue by analysing the same in the light of the fact that same has been duly reflected in the books of account as per the accounting system followed by the assessee under the head sales, advance and booking amount returned. The job which ought to have been done by the AO on amount received by assessee as customer s advance, same has been carried out by the Ld. CIT(A) and due assessment has been carried out. As far as amount involved on account of unsecured loans are concerned as mentioned (supra) most of the documents were available before the AO and practically AO may have grievance that due procedure was not followed as prescribed under Rule 46A (3) of the Rules, but same was not required as the powers of Ld. CIT (A) was coterminous with that of AO, and what an AO can do the same action, can be taken by him also. We found the order of Ld. CIT (A) to be reasonable and logical on the given set of facts and other than the issue of giving opportunity to AO under 46A (3) of the Rules, AO is not able to make out the case how it is prejudicial to the interest of revenue or what anomaly is there in the order of Ld. CIT (A). No infirmity in the order of Ld. CIT (A), especially when a substan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is order preferred an appeal before the Ld. CIT (A), who in turn deleted these additions made by the AO. Now Revenue being aggrieved with the order of Ld. CIT (A) passed u/s. 250 of the Act preferred this appeal before us. 4. We have gone through the order of AO u/s. 143(3) r.w.s. 144B of the Act, order of the Ld. CIT (A) passed u/s. 250 of the Act and submissions of the assessee alongwith grounds raised by the revenue. We observed that moot question before us is whether Ld. CIT(A) was justified in admitting the additional evidences adduced by the assessee before him without giving an opportunity of examination to the AO as provided in Rule 46A (3) of the I.T. Rules, 1962. Here it is also pertinent to examine whether allegation of not providing opportunity to the AO by Ld. CIT (A) is really exists or not. 5. We have observed order of Ld. CIT (A) and find that information furnished by the assessee before the Ld. CIT (A) is mostly available on record before the AO also. It is also observed that addition u/s. 68 of the Act on account of Unsecured Loan may be treated as such but as far as advance received from customers is concerned it's a settled position of law, same can't be consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer] any evidence which is relevant to any ground of appeal; or (d) Where the [Assessing Officer] has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal. (2) No evidence shall be admitted under sub-rule (1) unless the [ [Joint Commissioner] (Appeals)] [or, as the case may be, the Commissioner (Appeals)] records in writing the reasons for its admission. (3) The [Joint Commissioner] (Appeals)] [or, as the case may be, the Commissioner (Appeals)] shall not take into account any evidence produced under sub-rule (1) unless the [Assessing Officer] has been allowed a reasonable opportunity-- (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 [Joint 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case may be, by the appellant. [1990] 53 Taxman 85 (SC) Jute Corp. of India Ltd. v. Commissioner of Income-tax "The Act does not contain any express provision debarring an assessee from raising an additional ground in appeal and there is no provision in the Act placing restriction on the power of the appellate authority in entertaining an additional ground in appeal. In the absence of any statutory provision, the general principle relating to the amplitude of appellate authority's power being co-terminus with that of the initial authority should normally be applicable. If the tax liability of the assessee is admitted and if the ITO is afforded opportunity of hearing by the appellate authority in allowing the assessee's claim for deduction on the settled view of law, there appears to be no good reason to curtail the powers of the appellate authority under section 251(1)(a). Even otherwise an appellate authority while hearing appeal against the order of subordinate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bom.) Sesa Goa Ltd. v. Addl. CIT, Panaji, Goa [2007] 164 TAXMAN 168 (BOM.) CIT-II, Nagpur v. Suretech Hospital & Research Centre Ltd. "1. This appeal is filed by the revenue under section 260A of the Income-tax Act, 1961, stating that the following questions of law arise out of the order of the Tribunal dated 28- 2-2003 in I.T. Appeal No. 25/Nag. /2001. "(i)Whether, on the facts and in the circumstances of the case, the Hon'ble Income-tax Appellate Tribunal was justified in law in deciding that the learned CIT(A) ought to have exercised its powers to receive new/additional evidence for deciding the issue in terms of rule 46A (4) of the Income-tax Rules, 1962? (ii) Whether, on the facts and in the circumstances of the case, the Hon'ble Income-tax Appellate Tribunal was justified in law in admitting the additional/new evidence under rule 29 of the Income-tax (Appellate Tribunal) Rules, 1963? (iii) Whether, on the facts and in the circumstances of the case, the Hon'ble Income-tax Appellate Tribunal was justified in law in setting aside the matter to the file of the Assessing Officer relating to the additions of Rs. 6, 06,725? (iv) Whether, on the facts and in the circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... COM for processing loan of Rs. 70,00,000 and the Collector of Stamps had endorsed the same. 7. Challenging the aforesaid order, the present appeal is being filed by the revenue. 8. The first contention of the revenue is that the Tribunal was not justified in invoking rule 46A (4) of the Income-tax Rules and allowing additional evidence to be produced before CIT (A) for the first time. It is contended that the mere fact that the evidence sought to be produced is vital and important, does not provide substantial cause to allow its admission at the appellate stage when the evidence was available to the assessee at the initial stage and was not produced by him. In our opinion, there is no merit in this contention because rule 46A (4) provides that notwithstanding rule 46A (1), the appellate authority can permit production of documents which enable him to dispose of the appeal. In the facts of the case, the finding given by the Tribunal is that the documents produced were necessary for disposal of the appeal on merits and no question of law arises from such finding of fact recorded by the Tribunal. 9. In the light of the additional evidence permitted to be adduced; the Tribunal ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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