SHRI RAMBADAL DHUMAN YADAV,,AHMEDABAD vs. THE INCOME TAX OFFICER, WARD-2(6),, BARODA

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learned CIT(A). He humbly prays that the matter may kindly be remitted to the file of the learned CIT(A) for adjudication on merits after admitting the additional evidences. As regards the reason as to why these evidences could not be filed in the assessment proceedings, the assessee has filed an affidavit which reads as follows:-

“AFFIDAVIT

I the undersigned, Shri Rambadal Dhumun Yadav, aged about 59 years, residing at B-46, Parth Housing Society, Opp. Akota Garden, Akota, Baroda state on oath as under:

Sr. Date of Notice Hearing on Remark No 1 U/s.143(2) 13-9-2011 The Notice was received at the office premises of the appellant however could not be delivered to the appellant as accountant was sick and it was lying on his table. 2 U/s.143(1) 15-2-2012 29-2-2012 The notice was received by driver of the appellant and it was lying at accounted table and he was not attending office on regular basis

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3 U/s.143 (1) 2-8-2012 The Authorised Representative Mr. Nimesh Gandhi CA did appeared, however CA Nimesh Gandhi is not in contact with the appellant and its associates, and accordingly I am not aware about the details submitted by him. 4 U/s.143 (1) 20-9-2012 This notice was also referred to Ca Nimesh Gandhi, however CA Nimesh Gandhi is not in contact with the appellant and its associates and accordingly very difficult to get the details from him.. 5 On Request of CA 9-11-2012 Though the letter was submitted by CA however copy is not available with appellant. 6 Show cause Notice 24- 1 2-2012 3-1-2013 The letter was received and hand over to CA Naimesh Gandhi however due to non - available of accountant details could not be provided.

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I TA N o. 1 8 4 6/ Ah d 2 01 4 R a mb a d al D h u mu n Y a da v Vs . I TO Ass e ss me n t Y ea r : 2 0 10 - 1 1 Page 5 of 9 22. That Ld. CIT(A) in his Appellate Order dated 28-3-2014, which is subject matter of Appeal before Hon. Tribunal, has mentioned with regard to the additional evidences rejecting die some stating as under: "Considering the Remand Report of the Assessing Officer which is based on Inspectors field report, this Ground of Appeal is dismissed". 23. That with respect, it is submitted that, I have not able to find any mention of Inspectors Report in the Remand Report of the Assessing Officer and the remark of the Ld. CIT(A) be reconsidered on merits. 24. That presuming without admitting that Inspectors field report was given to the Ld. CIT(A) I have not been given copy of such report and also an opportunity to cross examine the Inspector of the Income-tax Department as per provisions of Law 25. That I respectfully submit that in view of "facts and circumstances of the case and the new evidence which is sought to be admitted to the CIT(A) goes to the root of heavy assessment, the Hon. Tribunal be kind enough to admit additional evidence for consideration. 25. That I have been seriously effected financially and that I am serious in contesting heavy addition and Tax Effect thereon and that I am Law abiding conscious citizen eager to cooperate with the Income-tax Department and that I was not negligent or had no malafide or disregard to the provision of Income Tax Act on my responsibility to the Nation. 26. That this Affidavit is prepared to be presented to Hon. Income-tax Appellate Tribunal, 'D' Bench, in lTA No. 1846/Ahd/2014 for A.Y.2010-11 What is stated above is true to the best of my knowledge and information. Solemnly affirmed at Vadodara on 6th day of November, 2017. Sd/- (Rambadal Dhuman Yadav)”

I TA N o. 1 8 4 6/ Ah d 2 01 4 R a mb a d al D h u mu n Y a da v Vs . I TO Ass e ss me n t Y ea r : 2 0 10 - 1 1 Page 6 of 9 “4. We have noticed that sole grievance of the Revenue is against violation of rule 46A by the learned CIT(A) and that the learned Departmental Representative has not made any submissions on merits of the case. Rule 46A of the IT Rules 1962, provides that 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 Assessing Officer except in following circumstances : (a)where the Assessing Officer has refused to admit the evidence which ought to have been admitted; or (b)where the appellant was prevented by sufficient cause from producing the evidence which was called upon to be produced by the Assessing Officer, or (c)where the appellant was prevented by the sufficient cause from producing before the Assessing Officer any evidence which is relevant to any ground of appeal; or (d)where the Assessing Officer has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal. In the present case, it is not in dispute that the assessment was done under section 144 of the IT Act and the additions made by the learned Assessing Officer were based on inferences drawn by him. It is, therefore, settled fact the sufficient inquiries were not conducted with regard to the claims made in the return of the assessee and that the case was fixed for hearing on only two dates i.e. on 29-9-1993 and on 16-3-1994, on which there was no compliance. We have also noticed that the assessee has, in first paragraph of the statement of facts filed before the first appellant authority, submitted that the notices for these two hearings were not received by them. We have also observed that first hearing was fixed on just a day before limitation under section 143(2) was to expire and thereafter next date was fixed shortly before the assessment itself was getting time-barred between these two dates, assessment proceedings did not get any attention from the learned Assessing Officer. When the assessment itself was done under section 144, the assessee obviously did not have opportunity of producing the evidence before the Assessing Officer. On these facts we are of the view that filing of additional evidence before the CIT(A) was clearly covered by clause (c ) above. A view may indeed be taken, as taken by Hon’ble Gujrat High Court in the case of CITv. Vali Mohd Ahmed Bhai [1982] 27 CTR (Guj.) 97 : [1982] 134 ITR 214 (Guj.), that the CIT(A) cannot admit any additional evidence placed under rule 46A(1) unless the ITO has been allowed a reasonable opportunity to examine the evidence, but it is not necessary to consider that aspect of the matter since in the case before us the Assessing Officer not only had an opportunity to examine all the evidence filed by the assessee but, availing this opportunity, he even filed a rejoinder on the same which was duly considered by the learned CIT(A). In this regard, we may however refer to observations of Shri G. Krishnamurty, the then Hon’ble President and while articulating views on behalf of Jaipur Bench of this Tribunal in the case of Electra (Jaipur) (P.) Ltd. v. IAC [1988] 26 ITD 236 (Del.), which are reproduced below :

I TA N o. 1 8 4 6/ Ah d 2 01 4 R a mb a d al D h u mu n Y a da v Vs . I TO Ass e ss me n t Y ea r : 2 0 10 - 1 1 Page 7 of 9 "After going through the evidence placed before us, considering the facts of this and going through the orders of the authorities below, we are of the view that the assessee should not be disqualified from producing this evidence merely on the ground that the evidence was not placed before authorities below. The sole purpose of judiciary as of the Revenue is to get at the truth. If the truth is that payment of commission was genuine and was dictated by the business needs, such a payment should not be disallowed merely on the ground that assessee was unable to lead proper evidence or on the ground that evidence lead was of such a nature as to create a very high degree of suspicion. There should be no objection to consider any evidence produced, to test its authenticity and relevance and then act on it. If the evidence is genuine, reliable, proves assessee’s case, then assessee should not be denied the opportunity. But on the other hand, if the evidence led turns out to be spurious, fabricated or of irrelevant nature, such consequence, as provided under the law, will ensure. It is, therefore, incorrect to shut out the assessee in the process of administration of justice from leading evidence to prove its case. The earlier inability to lead the evidence should not be held against the assessee unless it is known to the Court or suggested to the Court or there was evidence to the suspect that evidence was fabricated. There is no such suggestion in this case. We are therefore, of the opinion that request of the learned counsel is reasonable and request made by the Department for the refusal of its admission is not proper....." 5. We also find that Hon’ble Orissa Court in the case of B.L. Chowdhury v. CIT [1976] 105 ITR 371 (Ori.) have observed that by the virtue of section 250 wide provision has been made conferring jurisdiction on the first appellant authority to make such inquiry as he deem fit and that CIT(A) does not exceed his jurisdiction if he asks or allowed the appellant to file additional evidence in the matter he thinks fit. Hon’ble Bombay High Court, in the case of Smt. Prabhavati S. Shah v. CIT [1998] 148 CTR (Bom.) 192 : [1998] 231 ITR 1 (Bom.), have observed that rule 46A does fetter the right of the assessee to produce evidence but it does not restrain CIT(A)’s powers under section 250(4) or 250(5) of the IT Act and that this rule appears to ensure tht evidence is primarily led before the Assessing Officer. In view of this judgment of the Hon’ble a Bombay High Court, if prima facie an information is necessary to examine the claim of the assessee, the CIT(A) should consider the necessary evidence in exercise of his powers under sub-sections (4) and (5) of section 250. It is trite that Rule have to be framed within the scope of main, provision and that a rule, which travels beyond or is inconsistent with or is repugnant to the provisions in the stature will be ultra vires and void. Rule 46A was introduced w.e.f. 1-4-1973 and as a result of insertion of section 295(2)(mm) in the IT Act which empowered Board to provide for the circumstances in which, the condition subject to which and the manner in which CIT(A) may permit an appellant to produce an evidence which the appellant did not produce or was not allowed to produce before the Assessing Officer. However, these powers of the Board, which have been vested in them for carrying out for the purposes of the Act, have to be exercised in such a judicious manner so as not to make any statutory provision redundant and nugatory. The rules made in exercise of these powers should also not be interpreted in such manner as to narrow down, dilute or curtail the statutory powers, conferred on the CIT(A), by the provisions of section 250(4) or (5) of the

I TA N o. 1 8 4 6/ Ah d 2 01 4 R a mb a d al D h u mu n Y a da v Vs . I TO Ass e ss me n t Y ea r : 2 0 10 - 1 1 Page 8 of 9 IT Act, 1961. Therefore, a harmonious interpretation of section 250, even read with rule 46A, cannot but mean that if facts of a case warrant that, before disposal of any appeal, CIT(A) is required to make further inquiries, either on his own or through the Assessing Officer he is not denuded of the powers to do so because of the provisions of rule 46A.

I TA N o. 1 8 4 6/ Ah d 2 01 4 R a mb a d al D h u mu n Y a da v Vs . I TO Ass e ss me n t Y ea r : 2 0 10 - 1 1 Page 9 of 9 CIT(A)’s admission of additional evidence was clearly within the scheme of powers vested in him under section 250(4) of the IT Act because, as held by Bombay High Court in the case of Prabhavati S. Shah (supra), if prima facie an information is necessary evidence in examine the claim of the assessee, the CIT(A) should consider the necessary evidence in exercise of his power under section 250(4). It is settled in law that when a statutory authority has the powers to do something, then it has a corresponding duty to exercise such powers whenever circumstances warranting exercise of such powers exist. The case before us, in our considered view, was a fit case where the CIT(A) should have exercised his powers to make further inquiries. We, therefore see no legal infirmity in CIT(A) preceding on merits of the claim and admitting necessary additional evidence for that purpose. We also find support from the view taken by a co-ordinate Bench of this Tribunal in the case of Electra (Jaipur) (P.) Ltd., (supra).”

Sd/- Sd/-

Justice P P Bhatt Pramod Kumar (President) (Vice President) Ahmedabad, the 16th day of November, 2018 **bt

Copies to: (1) The appellant (2) The respondent (3) Commissioner (4) CIT(A) (5) Departmental Representative (6) Guard File

By order TRUE COPY Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad