9911796707
TMI Blog2002 (9) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed to explain the same. 2. That the Ld. CIT(A) while deleting the addition for cash credits failed to appreciate that the assessee did not make any compliance to the notices issued and, therefore, addition deleted is highly unjustified and such addition should be restored back. 3. That the Ld. CIT(A) has also erred in admitting fresh evidences filed before him and thus violating Rule 46A of I.T. Rules. 4. That the order of CIT(A) being bad in law may be set aside and the order of the Assessing Officer be restored." 2. The facts, as taken from the record, are that the assessee had filed return showing net loss. The case was taken up for scrutiny and notices under sections 143(2) and 142(1) were issued and served upon the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1995 of the Director Shri S.S. Kharbanda. The assessee also filed an application for admission of additional evidence and also filed medical certificates of S.S. Kharbanda as well as filed the affidavits and copy of account of these five creditors before the CIT(A). The assessee also prayed for admission of the additional evidence. The ld. CIT(A) referred all the affidavits of the creditors to the Assessing Officer vide his letter dated 24th January, 1995 inviting the objection of the Assessing Officer, if any, to the admission of such evidences. The Assessing Officer, in pursuance of the opportunity granted by the CIT(A), submitted his reply to the CIT(A) on 7th February, 1995 in writing and objected to the admission of the additional evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , their capacity to give loan as well as genuineness of the transaction. Ld. D.R. accordingly argued that the order of the CIT(A) is liable to be set aside. On the other hand, the ld. counsel for the assessee filed Paper Book containing the copies of the same affidavits, medical certificate and explanation filed before the CIT(A). Ld. counsel for the assessee relied on the order of the CIT(A) and argued that due to the illness of the Director, the details were not furnished before the Assessing Officer. The ld. counsel for the assessee further argued that all the three conditions of the cash credit were proved to the satisfaction of the CIT(A). Ld. counsel for the assessee further argued that all the entries were not doubted by the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed opportunity to the Assessing Officer to make his comments in the matter. The Assessing Officer filed his written objections before the CIT(A) which was received by the CIT(A) in his office on 7th February, 1995. The reply of the Assessing Officer revealed that he has given various dates showing when notices were issued to the assessee under sections 143(2) and 142(1). The notices were issued for 26-6-1992, 26-8-1993 and 5-10-1993 and lastly notice under section 143(2) was issued for 22-11-1993 and on that day the case was adjourned to 1-12-1993. The Assessing Officer replied that he had given five opportunities to the assessee which were not availed. The Assessing Officer further replied that the affidavits of the Director of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal evidence is admitted, such grant of opportunity by the Assessing Officer would be of no consequence. The revenue has taken ground No. 3 with regard to violation of Rule 46A of the Income-tax Rules. We are not able to agree with the contention of the ld. D.R. that Rule 46A has been violated at all. The Assessing Officer was given opportunity and the Assessing Officer had filed his reply also. Therefore, Rule 46A is not at all violated by the CIT(A). The revenue has filed this appeal on various grounds and ground Nos. 1 and 2 have been raised with regard to the identity and genuineness of the transaction and creditworthiness of the creditors but the same were raised on the plea that those things have not been explained before the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the affidavits and the details of the advance of loans. The ground Nos. 1 and 2 of the departmental appeal would not survive as whatever opportunity was granted by the Assessing Officer was considered by the CIT(A) while admitting the additional evidences. Rule 46A(1)(b) has given the exceptions when additional evidences could be admitted and one of the conditions was that where appellant was prevented by sufficient cause from producing the evidence before the Assessing Officer. The CIT(A) has already considered the reasonable cause in favour of the assessee. The Assessing Officer has not brought anything on record to show that assessee was not prevented from sufficient cause in producing the evidences before the Assessing Officer. The Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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