TaxTMI 
TaxTMI 
2020 (7) TMI 661
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....f AO, assessee carried the matter before the CIT(A) who vide order dated 28.03.2016 (in Appeal No.204/2015-16) granted partial relief to the assessee. Aggrieved by the order of CIT(A), Revenue and assessee are now before us. The grounds raised by the assessee in Appeal No.3103/Del/2016 reads as under: "1. The Ld CIT(A) has acted arbitrarily while estimating Net Profit (Income) at the rate of 1% of Sales as against declared G P Rate of 0.29% and Net Profit Rate of 0.055% of Sales by the appellant. 2. Ld CIT(A) is not justified in upholding the action of Rejection of Books of Accounts by AO and invoking the Provision of Section 145(3). The action of CIT(A) is bad in law and on facts. 3. Without prejudice to what has been stated above, the Ld CIT(A) failed to appreciate the past history of the appellant and that NO comparable case was quoted by AO while estimating Net Profit (Income) @ 1% of Sales. 4. On the contrary, the Ld CIT(A) and the AO failed to consider the GP Rate of 0.21% declared in comparable case of Mohd. Nadir for A.Y. 2012-13 by the AO of the same ward for which copy of assessment order was submitted by the Appellant at the time of assessment and appeal. 5. T....
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....ee has made application under Rule 29 of the Income-tax (Appellate Tribunal) Rule, 1963 for admission of additional evidence which inter alia includes the copy of gate passes, weight slips, bought notes, purchase invoices and the copy of accounts. He submitted that the Assessee is illiterate and not well versed with the legal and income tax proceedings. His income tax proceedings right from the inception of his business was represented by Shri Subhash Gupta (CA). For the previous assessment proceedings, assessee was represented by Mr. Subhash Gupta, Advocate and who inter alia for A.Y. 2011-12 had attended the assessment proceedings. Due to the unfortunate, death of Shri Subhash Gupta on 12.12.2012, his son, Mr Kshitij Gupta took over the matters looked after by Mr. Subhash Gupta. Mr. Gupta expired and the assessee was represented by Mr. Kshitij Gupta, son of Mr. Subhash Gupta. Mr. Kshitij Gupta also could not fully concentrate during the assessment proceedings due to the bereavement. On 26.01.2014, Assessee met with an accident and due to the fracture in his leg, he was bed ridden and could not furnish the details called for by the authorities. The Assessee now therefore propos....
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....tful consideration to rival contentions and have carefully perused the application made under rule 29 of the ITAT Rules. The undisputed fact is that the discretion lies with the Tribunal to admit additional evidence in the interest of justice. It is also not to dispute that Rule 29 of the ITAT Rules is aking to order 41 Rule 27(1) of the CPC. Our view is fortified by the decision of the Hon'ble High Court in the case of CIT vs Text Hundred India Pvt. Ltd. 351 ITR 57 the relevant observation of the Hon'ble Delhi High Court read as under: "13. The aforesaid case law clearly lays down a neat principle of law that discretion lies with the Tribunal to admit additional evidence in the interest of justice once the Tribunal affirms the opinion that doing so would be necessary for proper adjudication of the matter. This can be done even when application is filed by one of the parties to the appeal and it need to be a suo moto action of the Tribunal The aforesaid rule is made enabling the Tribunal to admit the additional evidence in its discretion if the Tribunal holds the view that such additional evidence would be necessary to do substantial justice in the matter. It is wellsettled tha....
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.... fresh evidence and the application is made to impart it. The true test, therefore, is whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought o be adduced." [Emphasis supplied] [See also Netha Singh v. Financial Commissioner AIR 1976 SC 1053]" 15. In the present case the reason which was given by the assessee in support of its plea for admission of additional evidence was that the assessee could not produce these records before the lower authorities due to non-retrievability of e-mail on the date because of technological difficulties. This reason was specifically mentioned in the application filed. No reply to this application was filed refuting this averment, though the departmental representative had opposed the admission of the additional evidence. The ground pleaded by the assessee was not confronted. In this backdrop, the Tribunal looked into the entire matter and arrived at a conclusion that the additional evidence was necessary for deciding the issue at hand. It is, thus, clear that the Tribunal found the requirement of the said evidence for proper adjudication of the matter....