9911796707
TMI Blog2025 (4) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... , by recording a finding which is perverse to the record?" 2. In order to answer the aforesaid questions of law, following facts are required to be noticed: - 3. The appellant / assessee firm, a builder / contractor, had e-filed its return of income for the assessment year 2016-17 on 21-2-2017 declaring an income of 97,270/-. The case of the appellant / Rs. assessee firm was selected for scrutiny assessment through CASS (Computer Assisted Scrutiny Selection) for verifying the high amount of cash-in-hand shown in its balance sheet filed with the return of income filed under Section 139(4) of the IT Act dated 7-11-2016 and the assessee firm in reply to the notice under Section 142(1) of the IT Act dated 13-11-2018, filed certain documents namely, Bank Statement, Computation of Total Income, Cash Book as on 31-3-2016 (only one page), Balance Sheet as on 31-3-2016, Profit and Loss Account as on 31-3-2016 and Income Tax Return. Ultimately, the Assessing Officer on 13-12-2018, passed the order of assessment assessing the income of the assessee firm as 31,90,190/-. Feeling Rs. aggrieved against the order of assessment, the appellant herein preferred appeal before the Commissioner of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , would submit that the appellant herein / assessee firm had sufficient opportunity to prefer those documents before the Assessing Officer which the appellant deliberately did not submit for the reasons known to him and at the belated stage, the additional documents were sought to be produced which has rightly been rejected by the ITAT and which is in accordance with law. Learned counsel would rely upon the decision of the Bombay High Court in the matter of Velji Deoraj & Co. v. Commissioner of Income-tax [1968] 68 ITR 708 (Bombay) to buttress his submission. As such, the appeal deserves to be dismissed as none of the substantial questions of law arise for consideration in this appeal. 6. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 7. In order to answer the aforesaid two substantial questions of law, in our considered opinion, firstly, substantial question No.B, is required to be dealt with, as answer to substantial question No.A would depend upon the outcome of substantial question No.B. Answer to substantial question No.B 8. Substantial question of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." 12. Order 41 Rule 27(b) of the CPC states that additional evidence can be admitted where the appellate court requires any document to be produced or or any witness to be examined to enable the court to pronounce judgment or for any substantial cause. 13. The Privy Council in the matter of Parsotim Thakur v. Lal Mohar Thakur AIR 1931 PC 143 held that additional evidence can be admitted, but it must be the court that requires it, and observed as under: - "By the terms of Order XLI, r. 27(b) it is only where an appellate court "requires" it (that is, finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but it must be the Court that requires it. The power cannot be exercised on an application by a party before the appeal is heard." 14. Similarly, in Velji Deoraj & Co. (supra), the Bombay High Court relying upon the decision of the Privy Council in Parsotim Thakur (supra) has held that the admission o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he words "or for any other substantial cause" an appellate court has a discretion to admit further evidence upon the application of a party." 15. The Supreme Court in the matter of Jagdish Prasad Patel (dead) Through Legal Representatives and another v. Shivnath and others (2019) 6 SCC 82 while dealing with the provisions contained in Order 41 Rule 27 of the CPC held that the general principle is that "the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 47. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed." 16. Reverting to the facts of the case in light of the parameters laid down by their Lordships of the Supreme Court, it is quite vivid that the application filed under Rule 29 of the ITAT Rules came to be rejected by the ITAT on the ground that both the cash book and cash flow statement which the assessee filed before the CIT (Appeals) were in the nature of additional evidence and the assessee firm had adopted an evasive approach in assessment proceedings and not filed either of the aforesaid documents, which formed the very basis for selecting its case for limited scrutiny assessment under Section 143(2) of the IT Act. The ITAT did not record a finding that the documents mentioned in paragraph 6 of the order as "additional evidence" are not necessary for deciding the case and pronouncing judgment or order for any substantial cause even after having recorded finding th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
