2017 (3) TMI 1258

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....mritsar (in short, "the Tribunal") in ITA No. 125(Asr)/2014, for the assessment year 2007-08, claiming following substantial questions of law:- (i) "Whether on the facts and circumstances of the case and in law, ITAT has erred in directing the CIT(A) to admit additional evidence without appreciating that no circumstances specified under Rule 46A(1) of the Rules existed and a clear finding in this regard was recorded by the CIT(A) and the ITAT? (ii) Whether on the facts and circumstances of the case and in law, the ITAT erred in failing to appreciate that under rule 29 of the Income Tax Appellate Tribunal Rules, 1963, the parties to the appeal should not be entitled to produce additional evidence unless the Tribunal, for reasons record....

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....ot cooperate with the Assessing Officer in completion of assessment proceedings", ignoring that the assessee's case did not fall under any of the conditions to be met by an application made under Section 250 of the Income Tax Act, 1961? 2. A few facts relevant for the decision of the controversy involved as narrated in the appeal may be noticed. A survey under Section 133A of the Act was carried out at the business premises of the assessee on 07.03.2007. The assessee surrendered additional income of Rs. 40,00,000/- The assessee filed his return of income on 30.10.2007 declaring an income of Rs. 39,52,746/-. The case was taken up for scrutiny and was assessed under Section 144 of the Act, vide order dated 11.12.2009 at an income of Rs. 1,....

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.... the Tribunal. Vide order dated 23.05.2014, Annexure A.3, the Tribunal dismissed the appeal filed by the assessee being defective one. Thereafter, the assessee filed a miscellaneous application before the Tribunal. The Tribunal recalled its previous order vide order dated 11.03.2016, Annexure A.4, in miscellaneous application No. 18(Asr)/2015. Thereafter, the Tribunal vide its order dated 02.08.2016, Annexure A.5, in the main appeal directed the CIT(A) to admit additional evidence and decide the case afresh after affording reasonable opportunity to the assessee of being heard by holding that to deliver natural justice despite the non-co-operative attitude of the assessee towards assessment proceedings, real income was to be assessed. Hence,....

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....nd have gone through the material placed on record. We find that it is an undisputed fact that assessment in this case has been completed under Section 144 of the Act as the assessee did not cooperate in assessment proceedings. It is also a fact that before learned CIT(A) the reason for non appearance before the Assessing Officer was explained to be sickness of assessee and assessee wanted to file additional evidence under Rule 46A of the Rules. However, the learned CIT(A) did not agree with the contention of assessee and did not admit the additional evidence by holding as under. "From the perusal of the assessment order, it is found that the AO at no stage refused to admit any evidence which ought to have been admitted. It is also....

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.... additional evidence by the appellant because ample opportunity to produce the account books and other bills/vouchers was afforded during assessment proceedings which was not availed of. The sequence of events and circumstances lead to an irresistible conclusion that the appellant intentionally avoided to produce books of account and other bills/vouchers so that the shortcomings in the accounts may not come to the notice of the Assessing Officer. As mentioned above, sufficient opportunity was afforded to the appellant but he did not avail of it. In this view of the matter, the application of the appellant under Section 250 of the Act read with Rule 46A of the Income Tax Rules cannot be entertained and the same is rejected." In view of th....