TaxTMI 
TaxTMI 
2016 (8) TMI 1461
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....acts in the specific AIR information which triggered the scrutiny assessment are as under:- "AIR information available on ITS system reflects that assessee has purchased a property in Plot No.12/480, Friends Sehkari Awas Samit, Vasundra, Ghaziabad, UP. The information & documents of purchase were called for u/s 133(6) of the I.T.Act from the sub-Registrar-IV for total consideration of Rs. 33,66,000/-. In absence of any documents in support of the purchase of the property by the assessee, the cost of acquisition of the property is taken as unexplained investment of the assessee as per provisions of section 69. Addition of Rs. 33,66,000/-." 2.1. Since the assessee remained unrepresented addition of Rs. 33,66,000/- was made by the Assessing Officer by an order passed under section 144 of the Income Tax Act 1961. The issue travelled in appeal before the CIT(A). 3. The assessee in appeal filed fresh evidences contending that due to her health problems, she had shifted temporarily to her in-laws native village. It was argued that the notices which may have been sent to her address consequently remained uncomplied with. Accordingly fresh evidences were filed in support of the claim m....
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....ny evidence or witness in rebuttal is provided to the AO. The relevant extract is reproduced hereunder:- Rule 46 A. (1).......................... (2).................................. (3) The Deputy Commissioner (Appeals) [or, as the case may be, the Commissioner (Appeals)] shall not take into account any evidence produced under sub-rule (1) unless the [Assessing Officer] has been allowed a reasonable opportunity- (a) to examine the evidence or document or to cross-examine the witness produced by the appellant, or (b) to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the appellant." 6.1. Sub-Rule (4) makes it clear that Rule 46A does not impinge on the powers of the CIT(A) to direct production of evidence or witness so as to enable him to dispose the appeal or for any other substantial course including enhancement etc. 6.2. Considering the facts as set out herein above in the light of the specific provision invoked, we find that in the peculiar facts and circumstances of the case, the CIT(A) has erred in deleting the addition made without first confronting the fresh evidences to the AO. We find that though before ....
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....t has held that the CIT(A) can also do and can direct the Assessing Officer to do what he has failed to do, as held by the Supreme Court in the case of Commissioner of Income-Tax, U.P. v. Kanpur Coal Syndicate, (1964) 53 ITR 225. The Hon'ble Court found that the CIT (A) in the facts before the Court which fact is evident from the facts of the present case also that the CIT(A) did not exercise the powers recognized in sub-Section (4) of section 250 and has to be exercised by the CIT (A). The Hon'ble Court has held that in order to show that the power under Sub-section (4) to section 250 is being exercised there should be material on record to show that while disposing of the appeal, the CIT(A) had directed further enquiry and called for the confirmation letters from the assessee even in respect of receipt of monies from customers by way of cheques. Rule 46A, it was observed was a provision in the Income Tax Rules, 1962 which is invoked, on the other hand, by the assessee who is in an appeal before the CIT (A). Once the assessee invokes Rule 46A and prays for admission of additional evidence before the CIT (A), then the procedure prescribed in the said rule it has been held has to be....
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....in charge of the Income-tax Officer." It was held by the Jurisdictional High Court that it is for the said reason that Rule 46A starts in a negative manner by saying that an appellant before the CIT (A) shall not be entitled to produce before him any evidence, whether oral or documentary, other than the evidence placed by him before the assessing officer. Their Lordships held that after making the said general statement, which was found to be in consonance with the principle stated in the aforesaid judgment of the Apex Court, exceptions have been carved out setting out under what circumstances it would be open to the CIT (A) to admit additional evidence. The Court held that additional evidence can only then be produced at the first appellate stage when conditions stipulated in the Rule 46A are satisfied and a finding is recorded to that extent which makes it clear in unambiguous language that firstly the conditions prescribed in Rule 46A must be shown to exist before additional evidence can be admitted and thereafter every procedural requirement mentioned in the Rule has to be strictly complied with so that the Rule is meaningfully exercised and not exercised in a routine or cursor....