2010 (8) TMI 70

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....is claim loan by raising the following substantial questions of law : "(1) Whether on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in not holding that the Commissioner of Income-tax (Appeals) was not correct, in admitting the additional evidence without recording satisfaction to the effect that the assessee was prevented by sufficient cause from producing the evidence at the assessment stage ? (2) Without prejudice to the preceding question, whether the Income-tax Appellate Tribunal was right in not observing that the Commissioner of Income-tax (Appeals) has acted upon the additional evidence without giving an opportunity to the Assessing Officer to verify such evidence, as mandated by ru....

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....t obtained from one another person by name M. J. Narasimha. The Commissioner of Income-tax (Appeals) after considering the evidence of the witnesses by name Ram Sethuraman and Ram Ganesan, who have stated that they have given loan as well as the letter of confirmation given by Mr. M. J. Narasimha, has allowed the appeal. 4. The Revenue filed a further appeal to the Tribunal contending that the provisions contained in rule 46A of the Income-tax Rules has teen violated inasmuch as the Assessing Officer has not been given an opportunity to cross-examine the witnesses produced by the assessee. The Tribunal after accepting the contention of the assessee that the witnesses cannot be produced, has remanded the matter to the Assessing Officer fo....

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.... the Assessing Officer has not been given an opportunity to cross-examine the witnesses produced by the assessee. That is the reason why the Tribunal has observed that rule 46A of the Income-tax Rules has been violated. 7. Once the Tribunal has come to the conclusion that rule 46A has been violated inasmuch as the Commissioner of Income-tax (Appeals) has not given an opportunity to the Assessing Officer to cross-examine the witnesses produced by the assessee then the directions issued thereafter stating that as the assessee is not in a position to produce the witnesses, the same cannot be insisted so as to enable the Assessing Officer to cross-examine them cannot be sustained. As observed earlier, rule 46A merely provides an opportunity ....