LAXMICHAND J VORA,MUMBAI vs. ITO WD 18(2)(1), MUMBAI

The only issue raised in the grounds of appeal no.1 and 2 is confirming the penalty under section 271(1)( c) of the Income Tax Act, 1961 at the rate of 100% of the tax sought to be evaded. The assessee also challenged the order on the ground that the additional proof filed by the assessee before the ld.CIT(A) were not admitted and hence the order passed by the ld. CIT(A) is bad in law.

At the outset, we would like to mention here that neither the assessee or his authorized representative appeared before this Tribunal when the appeal was called for hearing nor there is any application seeking adjournment of the hearing is received in the office of the Tribunal, therefore, we proceed to dispose of the appeal of the assessee ex-parte on merit after hearing the ld.DR.

The assessee also challenged the order of the ld.CIT(A) on the ground that the additional evidence filed before the FAA were not admitted and the case was decided without considering the additional evidences. We also find from the order of FAA that the ld. CIT(A) has specifically observed that the additional evidence under rule 46A(i)(b) of the Income Tax Rules, 1962 3 could only be admitted if the assessee is prevented by sufficient cause from presenting such evidence. For the sake of brevity, we reproduce the finding of the ld.CIT(A): “5. During appellate proceedings appellant wanted to submit certain additional evidences regarding investment in the property. It is claimed that the amounts were paid in cash on different dates in the year 1994, 1995, 1996 and only final installment was given in May,2008. As far as admissibility of additional evidence is concerned, Rule 46A(i)(b) clearly states that the evidence should be admitted where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the Assessing Officer. In this case, as stated above, sufficient opportunity was given to the appellant during assessment proceedings. In view of the above the evidence given by the appellant during appellate proceedings is not admitted”

We have heard the ld. DR and perused the material placed before us including the impugned orders of authorities below. We find that in this the ld. FAA has proceeded with to dispose of the appeal without admitting the additional evidence filed by the assessee before the FAA. In our considered view, this goes to violate the principle of natural justice as the assessee has not been heard on the additional evidence as the additional evidences were not admitted and considered by the ld.CIT(A) while disposing of the appeal. We, are therefore, inclined to set aside the order of the ld.CIT(A) by restoring the appeal back to the file of the AO to levy penalty after considering the additional evidence as may be filed by the assessee in the set aside proceedings and decide the issue as per law and facts.