TaxTMI 
TaxTMI 
2019 (1) TMI 93
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....various issues. A perusal of para 3 of the assessment order shows that despite repeated opportunities granted by the AO, the assessee either sought adjournment or filed negligible details for which the AO was constrained to pass an order u/s 144 of the IT Act, wherein he made addition of Rs. 193,06,80,553/- by making disallowance u/s 68 of the IT Act of Rs. 91,26,00,000/- and Rs. 43,15,00,000/- respectively and disallowance on account of expenses at Rs. 58,65,80,553/-. Thus, he determined the total income at Rs. 72,53,67,201/- as against the returned loss of Rs. 120,53,13,352/-. After adjusting the brought forward loss of Rs. 80,79,68,419/-, he determined the total income at Rs.nil. 3. The assessee preferred an appeal before the CIT(A) and filed certain additional evidences during the course of appellate proceedings before the CIT(A) under Rule 46A of the IT Rules. The ld.CIT(A) forwarded those additional evidences to the AO for his comments. The AO strongly objected to the admission of the additional evidences. However, the ld.CIT(A) gave substantial relief by deleting the addition of Rs. 91,26,00,000/- made by the AO on account of unexplained increase in share capital includin....
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....sed above at the time of hearing." ITA No.5810/Del/2014 "On the facts and circumstances of the case, the Ld. CIT (A) is not justified in sustaining Ad Hoc disallowance of Rs. 7,76,39,843/- being 10% of Operational and Administrative & Other Expenses as against Ad Hoc 50% disallowance by the AO, despite submitting complete details / desired evidences. The appellant craves leave to add, avoid, forgo or alter the aforesaid Ground of Appeal if it becomes necessary to do so in the interest of justice, at or before the time of hearing of the aforesaid appeal." 4. The ld. DR strongly objected to the order of the CIT(A). He submitted that the AO passed the order u/s 144 of the IT Act due to non-compliance of the assessee during the course of assessment proceedings which is evident from para 3 of the assessment order. The assessee filed an application u/r 46A before the CIT(A) by filing certain additional evidences. The ld.CIT(A) called for a remand report from the Assessing Officer and the Assessing Officer had categorically submitted that the case of the assessee was not covered under the exceptions provided in clause (a) to (d) of Rule 46A(1). However, the A....
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....13 fixing the case for hearing on 8th January, 2012 and the Assessing Officer passed the order on 9th January, 2013. Thus, adequate opportunity was not granted to the assessee and the assessment was not getting time barred on 9th January, 2013. Therefore, the Assessing Officer should have given further opportunity to the assessee. He submitted that the ld.CIT(A) appreciated the above facts and admitted the additional evidences after giving due opportunity of being heard to the Assessing Officer. Since the Assessing Officer did not give his comments on the merit of the case and also objected to the admission of the additional evidences, the ld.CIT(A), after proper appreciation of the facts of the case not only admitted the additional evidences, but also gave relief to the assessee which, on the facts and circumstances of the case, is fully justified. He, accordingly, submitted that the order of the CIT(A) be upheld to the extent of relief granted by him. So far as the addition sustained by the CIT(A) is concerned, he submitted that the same is not justified under the facts and circumstances of the case. 6. The ld. counsel also relied on the following decisions:- i) CIT v....
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.... on the basis of material available on record." 8. The ld. counsel for the assessee also fairly conceded that there was no compliance before the Assessing Officer due to non-appearance of the counsel for the assessee. We find the assessee filed certain additional evidences before the CIT(A) under Rule 46A of the IT Rules. Before adjudicating the admissibility of the additional evidences filed before the CIT(A) under Rule 46A of the IT Rules, we would like to extract the provisions of Rule 46A which read as under:- "46A. (1) The appellant shall not be entitled to produce before the [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)], any evidence, whether oral or documentary, other than the evidence produced by him during the course of proceedings before the [Assessing Officer], except in the following circumstances, namely :- (a) where the [Assessing Officer] has refused to admit evidence which ought to have been admitted ; or (b) where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the [Assessing Officer] ; or (c) where the appellant was preve....