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Income Tax Appellate Tribunal, PUNE BENCHES “A” :: PUNE
Before: SHRI PARTHA SARATHI CHAUDHURY & DR. DIPAK P. RIPOTE
ORDER
PER DR. DIPAK P. RIPOTE, AM:
This appeal filed by the Revenue against the order of Ld.Commissioner of Income Tax(Appeals)[NFAC], passed under section 250 of the Income Tax Act, 1961 dated 14.08.2023. The Revenue for A.Y.2018-19 has raised the following grounds of appeal : “i. The Ld.CIT(Appeals) erred in accepting the self-serving documents not corroborated by evidence and which had not stood the test of enquiries in assessment proceedings. ii. The Ld.CIT(Appeals) erred in not allowing the AO to examine the additional evidence admitted by him as per the provisions u/s 46A(3) of the I T Rules 1962. iii. The Ld.CIT(Appeals) erred in admitting the evidence filed before him in to consideration without any opportunity in rebuttal to the assessing officer which the respondent did not furnish during the assessment proceeding. iv. On the facts and in the circumstances of the case and in law, the Ld. CIT(A),NFAC has erred in deleting the addition of Rs.37.50,000/- made on account of Tax ion Long Term Capital Gain u/s 112 of the Act on sale of immovable property. v. On the facts and in the circumstances of the case and in law, the Ld. CIT(A), NFAC has erred in deleting the addition of Rs.68,85,826/- made on account of unexplained investment in immovable property u/s 69 of the Act. vi. The appellant prays that the order of the Ld. CIT(A), NFAC may be set- aside and that of the assessing officer be restored. vi. The appellant craves leave to add, amend or alter any ground/grounds, which may be necessary.”
At the time of hearing, no one appeared on behalf of the assessee. No adjournment letter was found on record.
Submission of ld.Departmental Representative(ld.DR) : 3. The ld.DR for the Revenue invited our attention to para 6.3, page 22 of the ld.CIT(A)’s order. The relevant part of para 6.3 is as under : “I find that information contained in Exhibit A & B which are useful for assessment were available with the AO before assessment. Therefore, Exhibit-C, D & E are, in true sense, additional evidences being entertained under Rule 46A of the IT Rule. I also find that these evidences are conclusive in deciding the grounds of appeal and are not referred to the AO for his comment or remand report.” 3.1 The ld.DR explained that ld.CIT(A) has admitted the additional evidences without giving opportunity to the Assessing Officer(AO) which is violation of Rule 46A of the Income Tax Rules.
3.2 Rule 46A of the Income Tax Rules is as under : Production of additional evidence before the 1[Joint Commissioner] (Appeals) and Commissioner (Appeals). 46A. (1) The appellant shall not be entitled to produce before the 1[Joint Commissioner] (Appeals) or, as the case may be, the Commissioner (Appeals), any evidence, whether oral or documentary, other than the evidence produced by him during the course of proceedings before the Assessing Officer, except in the following circumstances, namely :— (a) where the Assessing Officer 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 Assessing Officer ; or (c) where the appellant was prevented by 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. (2) No evidence shall be admitted under sub-rule (1) unless the 1[Joint Commissioner] (Appeals) or, as the case may be, the Commissioner (Appeals) records in writing the reasons for its admission. (3) The 1[Joint 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. (4) Nothing contained in this rule shall affect the power of the 1[Joint Commissioner] (Appeals) or, as the case may be, the Commissioner (Appeals) to direct the production of any document, or the examination of any witness, to enable him to dispose of the appeal, or for any other substantial cause including the enhancement of the assessment or penalty (whether on his own motion or on the request of the Assessing Officer) under clause (a) of sub-section (1) of section 251 or the imposition of penalty under section 271.
3.3 The procedure for admission of additional evidence is provided in Rule 46A of the Income Tax Rules. As per Rule 46A, it was mandatory for ld.CIT(A) to provide opportunity to the Assessing Officer to rebut the additional evidence filed by the Mangala Hari Ingale [R] assessee. As per Rule 46A it is mandatory for Ld.CIT(A) to record his satisfaction for admitting the Additional Evidence. No such satisfaction has been recorded by Ld.CIT(A). In this case, ld.CIT(A) has not followed procedure laid down in the Rule 46A.
Findings & Analysis : 4. We have heard ld.Departmental Representative for the Revenue and perused the records. In this case, admittedly it is clear from paragraph 6.3 of the ld.CIT(A)’s order that five documents had been filed by the assessee before the ld.CIT(A) as additional evidences which has been named as Exhibit-C to Exhibit-E. The ld.CIT(A) admitted these additional evidences. However, the ld.CIT(A) admittedly not referred these evidences to AO for his comments as per Rule 46A of the Income Tax Rules. As per Rule 46A, it is mandatory for ld.CIT(A) to provide opportunity to the Assessing Officer to verify the additional evidence. In these facts and circumstances of the case, we agree with the ld.DR that ld.CIT(A) has violated Rule 46A of the Income Tax Rules. Therefore, the order of the ld.CIT(A) is set-aside to ld.CIT(A) for denovo adjudication. Ld.CIT(A) shall provide opportunity to the AO & Assessee. Accordingly, Ground No.2 of the Revenue is allowed.
4.1 We do not comment on the merits of the case as we have set- aside the order of ld.CIT(A). Accordingly, other grounds of Revenue becomes infructuous, hence, dismissed as infructuous. Hence, the order of the ld.CIT(A) is set-aside to ld.CIT(A) for denovo adjudication. The ld.CIT(A) shall provide opportunity of hearing to the Revenue as well as Assessee.
In the result, appeal of the Revenue is Partly Allowed for Statistical Purpose. Order pronounced in the open Court on 2nd April, 2024.