TaxTMI 
TaxTMI 
2015 (9) TMI 1047
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....Tax (Appeals) as required under the Rule 46 of the Income Tax Rules, 1962 have been granted. He submitted that the assessment order was passed on 29.12.2010. Against the assessment order, the respondent assessee filed an appeal, before the Commissioner of Income Tax (Appeals) under Section 246(A) (1)(b)(a) of Income Tax Act, 1961 (in short 'IT Act'). For the first time on 9.12.2011, the documents were sent to the Assessing Officer for comments and remand report. On 16.1.2012 Assessing Officer vide application prayed for further time of more than one month to offer comments on the admissibility of the appellant's additional evidence forwarded to his office. The appellate authority without granting any further time admitted the aforesaid documents and set aside the assessment made by the assessing officer and allowed the appeal by order dated 31.1.2012. The order of the appellate authority has been affirmed by the ITAT by impugned order dated 23.8.2013. He submitted that all these appeals pertaining to the seven assessment years (assessment years 2003-04 to 2009-10). 5. Now the question is whether Commissioner (Appeals) granted reasonable opportunity to the assessing off....
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....ll its clients for the reasons that most of the persons are hesitant to provide such documents. The assessee made a request to admit all those documents as additional evidence under Rule 46A of Rules, 1962. 10. The applications of the assessee together with the additional evidences were sent to the Assessing Officer by office letter dated 18.7.2011 and 8.11.2011, respectively for his comments. In some of the cases, no comments have been received nor any written submissions on the admissibility of additional evidences under Rule 46A was filed. In some of the cases, an application dated 16.1.2012 was filed by the Deputy Commissioner of Income Tax stating therein that the additional evidence, which was filed by the assessee along with the application could not be verified as the under signed has engaged in the limitation cases involving more than 150 block assessments. Moreover, taking into account the assessee's voluminous submission forwarded to the office and also to the fact that Deputy Commissioner of income tax, who is looking to the matter on behalf of the revenue has been assigned the duties of expenditure in the U.P. State Election in Ghaziabad Constituency by the Electi....
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.... and large by all the brokers because the exchange (NBOT) did not enforce the registration; and the result was that though the name of clients (for whom the assessee had transacted i.e. sauda was effected in NBOT) did appear in its books of accounts but the same was not recorded in NBOT records. For this reason, entire pay-in and pay-out in the NBOT was recorded in the name of the assessee only, whereas, the financial records of the assessee did reflect the corresponding transactions and the ledger accounts of all those clients. It was pleaded that brokerage was duly charged on such transactions. During the proceedings, nevertheless, the assessee further collected the confirmations and or ITRs of some of the clients in support of its claim that all its clients were genuine and the profit passed on to them were also reflected by them in their ITRs. It has been also submitted that inspite of their best effort, they could not collect the ITRs of all its clients for the reasons that most of the persons are hesitant to prove such documents. The assessee made a request to admit all those documents as additional evidence under rule 46A. The application of the assessee together with the en....
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....mar Jain, and Shri Sumit Nima, learned counsel for the respondents drew our attention to the findings recorded by the Commissioner as well as by the learned Tribunal and submitted that before admitting the additional evidences, the Commissioner of Income Tax (Appeals) had obtained a remand report from the Assessing Officer. The Assessing Officer inspite of sufficient opportunities granted to him failed to submit the same. They further submit that Rule 46A of the Rules permits the Commissioner of Income Tax (Appeals) to admit the additional evidences, if he finds that the same is crucial for disposal of the appeal. The learned Commissioner after considering the application gave a finding that the additional evidence is crucial for disposal of the appeal and therefore, allowed the application and decided the appeal on merits. With the aforesaid, they prayed for dismissal of the appeal. 15. Rule 46A of the Income Tax Rules of 1962 is relevant which reads as under :- [Rule 46A. Production of additional evidence before the [Deputy Commissioner (Appeals)] [and Commissioner (Appeals)]. (1) The appellant shall not be entitled to produce before the [Deputy Commissioner (Appeals)] [or, as ....
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.... not the case of the assessee that he was prevented by the sufficient cause from producing the additional evidence before the Assessing Officer. As per sub-rule 2 of Rule 46A, no evidence shall be admitted unless reasons in writing is recorded for its admission. As per Rule 3 unless the Assessing Officer has been allowed a reasonable opportunity to examine the evidence or documents, the appellate authority shall not take into account any evidence produced before him under sub-rule 1. 17. Rule 46A merely provides an opportunity to the assessee to produce documentary evidence or witnessess, as the case may be. In other words, a duty is cast upon the assessee to produce all evidence both oral and documentary before the Assessing Officer. 18. When the assessee was not able to produce the said evidence or witnesses before the Assessing Officer, the Commissioner of Income-tax (Appeals) has to convince himself about the reasonable cause shown by the assessee for not producing them before the Assessing Officer and for placing it before the appellate authority for the first time. 19. In the case where the Commissioner of the Income-tax (Appeals) is convinced about reasonable cause then, ....