2020 (4) TMI 558

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....ing the addition u/s. 68 of the Act, the Ld. CIT(A) ignore the decision of Hon'ble Delhi High Court - 2015 ( 375 ITR 373) in the case of CIT Vs. Jansampark Advertising & Marketing (P) Ltd. in which it is held that in case of unaccounted entries found in the books of account of assessee, though it is obligation of Assessing Officer to conduct proper scrutiny of material, in event of Assessing Officer failing to discharge his functions properly, obligation to conduct proper enquiry shifts to CIT(A) and Tribunal and they cannot simply addition made by the Assessing Officer on ground of lack of inquiry." 3. Ld CIT DR submitted that on verification of records, it appears that there is violation of Rule 46A of the Income tax Rules, 1962 (hereinafter in short 'the Rules'). Therefore, as per the direction of Pr. CIT, Central, Visakhapatnam issued under section 253(2) of the Income tax Act (hereinafter in short 'the Act'), the revenue is submitting additional grounds of appeal for admission, consideration and adjudication. Placing reliance on the decision of Hon'ble Supreme Court in the case of NTPC, 229 ITR 363 (SC) submitted that the objection raised in additional grounds is legal be....

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....compliance of Rule 46A of I.T.Rules. The aforesaid additional ground of appeal is therefore admitted for adjudication on merits in view of the discretion conferred on the Tribunal under Rule 11 of the Income-tax (Appellate Tribunal) Rules, 1963 and the decision of the Hon'ble Supreme Court decision in the case of NTPC (supra). Additional Ground No.1 8. Apropos additional Ground No.1 of appeal, we have heard the rival submissions, carefully considered the relevant materials on the record of the Tribunal, inter alia, assessment order, first appellate order, paper book filed by the assessee spread over 141 pages, written submission filed by the appellant/revenue on the relevant material before the Bench. 9. Ld CIT D.R. reiterated the written submission in support of additional Ground No.1 and submitted that from relevant para 5, pages 2 to 15 of the first appellate order especially pages 9 & 10 reveals that the ld CIT(A) has admitted and considered enclosure Sl. No. 1 to 8, which were not submitted before the AO during assessment proceedings, without calling any remand report and comments of the AO. Therefore, the ld CIT(A) has granted relief to the assessee by considering addi....

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....tedly, on the request of ld counsel for the assessee, assessment records were called for and inspected by ld counsel before the Bench and he could not show us that the enclosures/documents listed at Sl. No.1 to 8 at page 10 of the impugned order were submitted before the AO during assessment proceedings, which clearly presume that these documents/enclosures were not in the assessment records and these were furnished by the assessee during first appellate proceedings. 13. Further, since the controversy revolves around non-compliance of Rules 46A of I.T.Rules, therefore, for the sake of completeness, we find it appropriate to reproduce Rule 46A of I.T.Rules, which reads as follows: "46A (1) The appellant shall not be entitled to produce before the CIT(A), any evidence, whether oral or documentary, other than the evidence produced by him during the course of proceedings before the AO, except in the following circumstances, namely:- (a) Where the AO 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 AO; or (c) Where the appellant was....

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.... a reasonable opportunity to examine the evidence or the document or to cross examine witnesses produced by the assessee or to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the assessee. 15. However, sub-rule(4) of Rule 46A also provides that no bar is created by sub-rule (1), (2) & (3) or nothing contained in this rule 46A of the Rules shall effect the power of the first appellate authority to direct the production of any document to enable him to dispose the appeal. As we have observed above that from careful reading of relevant part of first appellate order, e clearly noted tht the ld CIT(A) never issued any direction to the assessee to produce documents listed at Sl.No.1 to 8 at page 10 of the first appellate order under challenge and thus, sub-rule (4) cannot be pressed into service in favour of the assessee against legal ground of the appellant/revenue. 16. In the present case, as we have noted above that enclosures listed at Sl. No.1 to 8 at page 10 of the CIT(A) order were submitted by the assessee for the first time before the ld CIT(A) on his own without any direction from the ld CIT(A), therefore, the requirement of ....