TaxTMI 
TaxTMI 
2015 (2) TMI 583
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....the non-compliance by the assessee reads as under:- "Return of income was filed on 31103/2007 declaring income of Rs. 2,94,895/-. The same has been processed u/s 143(1) of the I.T. Act. Subsequently, the case was selected for scrutiny through CASS. Notice u/s 143(2), was issued on 10-08-2007 duly served upon the assessee accordingly. During the relevant financial year, the assessee has been deriving income from house property, capital gains & other sources. In response to the said notice neither anybody attended nor any application for adjournment was received. Thereafter, notice u/s. 143(2) dated 24.8.20087 fixing the case for 07.09.2007 was issued, which was returned back un-served by the notice server with the remarks "Left the house". A....
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.... instant case namely:- (A) Deposit of Rs. 20,00,000/- in account with ICICI Bank. (B) Addition of Rs. 7,36,607/-, on account of so-called maximum credit balance on 28-06-2005. (C) Addition of Rs. 2,54,158/- on account of so-called income from business @ 10% of total credits in bank account amounting to Rs. 32,78,1911- (after reducing Rs. 7,36,607/-, the maximum credit amount on 28-06-2005). 5. He thereafter deleted all the aforesaid additions. As regards addition of Rs. 20 lakhs he has concluded as under:- "Documents have been filed in paper-book before me, to show that HUF has agreed to sell its property No. 24-F, Kamla Nagar, Kohlapur Road for Rs. 1,05,00,000/- in July, 2005. However, the payments were to be completed by 31-03-2006 by....
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....s)." 6. So far as the addition of Rs. 9,90,765/- he has held as under:- "The additions of Rs. 7,36,260/- and Rs. 2,54,158/- as peak credit and profit earned by the appellant respectively, were made by the Id AO, while framing his order on ex-parte basis. However when details of all the accounts and credit entries in bank account were available with him, he did not think it fit to make use of the available information, nor did he refer to any of the documents with particular comments. It is not clear when copy of bank statement was taken by the learned assessing officer by issue of notice under section 133(6), what prevented him to carry-out further investigations into entries in the account. Nor did he seek any further information from the....
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....aterial on records, we find that the assessee did furnish fresh evidences before the ld CIT(A), which has led him to delete the additions. However, before doing so, we also find that there is no finding that such additional evidence warrants admissions under:- "Rule46A. Which is not in conformity with Rule46A as held by the jurisdictional High Court in Manish Buildwell (204 Taxman 106) wherein it has been observed as under:- "Rule 46A is a provision which is invoked, on the other hand, by the assessee who is in an appeal before the Commissioner (Appeals). Once the assessee invokes Rule 46A and prays for admission of additional evidence before the Commissioner (Appeals), then the procedure prescribed in the said rule has to be scrupulously ....
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....led to produce before him any evidence, whether oral or documentary, other than the evidence adduced by him before the AO. After making such a general statement, exceptions have been carved out that in certain circumstances it would be open to the Commissioner (Appeals) to admit additional evidence. Therefore, additional evidence can be produced at the first appellate stage only when conditions stipulated in rule 46A are satisfied and a finding is recorded. The conditions prescribed in rule 46A must be shown to exist before additional evidence is admitted and every procedural requirement mentioned in rule has to be strictly complied with so that rule is meaningfully exercised and not exercised in a routine or cursory manner. A distinction s....
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.... the evidence and rebut the same, has not been complied with. There is nothing in the order of the Commissioner (Appeals) to show that the AO was confronted with the confirmation letters received by the assessee from the customers who paid the amounts by cheques and asked for comments. Thus, the end result has been that additional evidence was admitted and accepted as genuine without the AO furnishing his comments and without verification. Since this is an indispensable requirement, the Tribunal ought to have restored the matter to the Commissioner (Appeals) with the direction to him to comply with sub-rule (3) of rule 46A." 10. In the light of the above said case law we need to examine the instant case. We have noted that obtaining a rema....