JCIT, New Delhi v. M/s Venus Financial Services Ltd., New Delhi

ITA 2958/DEL/2011 | 2007-2008
Pronouncement Date: 30-03-2012 | Result: Allowed

Appeal Details

RSA Number 295820114 RSA 2011
Assessee PAN AAACV3258L
Bench Delhi
Appeal Number ITA 2958/DEL/2011
Duration Of Justice 9 month(s) 23 day(s)
Appellant JCIT, New Delhi
Respondent M/s Venus Financial Services Ltd., New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2012
Appeal Filed By Department
Order Result Allowed
Bench Allotted H
Tribunal Order Date 30-03-2012
Date Of Final Hearing 26-03-2012
Next Hearing Date 26-03-2012
Assessment Year 2007-2008
Appeal Filed On 06-06-2011
Judgment Text
ITA 2958/DEL/2011 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `H NEW DELHI BEFORE SHRI A.N. PAHUJA ACCOUNTANT MEMBER AND SHRI CHANDRA MOHAN GARG JUDICIAL MEMBER I.T.A.NO.2958/DEL/2011 ASSESSMENT YEAR : 2007-08 JT. COMMISSIONER OF INCOME TAX VS VENUS FINANCI AL SERVICES LTD. CIRCLE 17(1) THAPAR HOUSE 124 JANPATH NEW DELHI. NEW DELHI. (PAN AAACV3258L) (APPELLANT) (RESPONDENT) APPELLANT BY: MRS. REENA S. PURI CIT DR RESPONDENT BY : SHRI SUNIL ARORA O R D E R PER CHANDRA MOHAN GARG JUDICIAL MEMBER THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAI NST THE ORDER OF CIT(A)-XIX NEW DELHI DATED 21.3.2011 BY WHICH THE LD. CIT(A) DELETED THE ADDITION OF RS.11 84 45 205 MADE BY THE AO ADMI TTING THE ADDITIONAL EVIDENCE OF THE ASSESSEE AT THE FIRST APPELLATE STA GE. THE CASE IS PERTAINING TO ASSTT. YEAR 2007-08. 2. THE GROUNDS OF APPEAL ARE REPRODUCED AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LD. CIT(A) HAS ERRED IN DELETING ADDITION OF RS.5 00 00 000/- MADE U/S 68 IN RESPECT OF RECEIPTS OF SHARE APPLICA TION MONEY IN THE ABSENCE OF ADEQUATE MATERIAL TO ESTABL ISH THE CREDITWORTHINESS OF THE SHARE APPLICANT DESPITE ITA 2958/DEL/2011 2 ADEQUATE OPPORTUNITY GRANTED TO THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN DELETING ADDITION OF RS.5 00 00 000/- MADE U/S 68 IN RESPECT OF TRANSACTIONS BETWEEN THE ASSESSEE AND M/S ASA AGENCIES (P) LTD. BY NOT DECID ING ENTIRELY ON MERITS THE CONTENTIONS OF THE AO IN THE ASSESSMENT ORDER AND BY IGNORING THAT THE IDENTITY OF THAT COMPANY WAS NOT ESTABLISHED EITHER DURING THE ASSESSMENT PROCEEDINGS OR DURING THE APPELLATE PROCEEDINGS. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN DELETING DISALLOWANCE OF RS.1 00 00 000/- MADE ON ACCOUNT OF RECEIPTS BY THE ASSESSEE FROM M/S BILT PAPER HOLDING LTD. BY NOT DECIDING ENTIRELY ON MERITS THE CONTENTIONS OF THE AO IN THE ASSESSMENT ORDER AND BY IGNORING THAT THE CREDITWORTHINESS OF THE SAID COMPANY WAS NOT ESTABL ISHED EITHER DURING THE ASSESSMENT PROCEEDINGS OR DURING THE APPELLATE PROCEEDINGS. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN DELETING ADDITION OF RS.84 45 2 05/- MADE ON ACCOUNT OF WRONG CLAIM BY THE ASSESSEE THAT THE SAME WAS EXEMPT DIVIDEND INCOME AND NOT TAXABLE INCOME AS HELD BY THE AO BY NOT DECIDING ENTIRELY ON MERITS THE CONTENTIONS OF THE AO DISCUSSED IN DETA IL IN THE ASSESSMENT ORDER. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND NOTICE U/S 143(2) OF THE I.T.ACT 1961 (HEREINAFTER THE ACT) WAS ISSUED AND SERVED UPON THE ASSESSEE ON 24.9.2008. AGAIN NOTICES U/S 143(2) AND 142(1) OF THE ACT WERE ISSUE D AND DULY SERVED ON THE ITA 2958/DEL/2011 3 ASSESSEE ON 20 TH JULY 2009. SHRI AKHILESH BANSAL CA & A.R. OF TH E ASSESSEE COMPANY ATTENDED THE PROCEEDINGS BEFORE T HE AO. THE AO PASSED ASSESSMENT ORDER DATED 31 ST DECEMBER 2009 WITH THE FINDINGS FROM PARA 2 TO PARA 5 MAKING ADDITIONS OF RS. 11 84 45 205/- IN RE SPECT OF SHARE APPLICATION MONEY RS. 5 00 00 000/- RECEIVED FROM M/S JANPATH I NVESTMENT & HOLDING LTD. A BALANCE OF CREDIT IN THE NAME OF M/S ASA A GENCIES PRIVATE LIMITED - RS. 5 00 00 000/- A CREDIT BALANCE REGARDING RECEI PT OF RS. 1 00 00 000/- FROM M/S BILT PAPER HOLDINGS LIMITED AND DIVIDEND O F RS.84 45 205 RECEIVED FROM M/S SOLARIS HOLDINGS PVT. LTD. 4. AGGRIEVED BY THE ORDER OF THE AO THE ASSESSEE P REFERRED FIRST APPEAL BEFORE THE CIT(A)-XIX NEW DELHI IN WHICH THE ASSES SEE FILED ADDITIONAL EVIDENCE PAPER BOOK CONTAINING 145 PAGES OF EVIDEN CE. THE ASSESSEE FILED A PETITION UNDER RULE 46A DATED 29.4.2010 WITH ADDI TIONAL DOCUMENTARY EVIDENCE OF 145 PAGES AND LD. CIT(A) FORWARDED THE SAME TO THE AO VIDE HIS LETTER DATED 05.05.2010. THE AO SUBMITTED A REMAND REPORT DATED 08.02.2011 AND A COPY OF REMAND REPORT WAS SUPPLIED TO THE ASSESSEE FOR WHICH THE ASSESSEE FILED A REJOINDER ON 15.03.2011. THE REPORT OF THE AO AVAILABLE FROM PAGE 113A TO 113C SHOWS THAT THE AO OPPOSED THE ADMISSIBILITY OF ADDITIONAL EVIDENCE MAINLY ON FOLL OWING GROUNDS:- ITA 2958/DEL/2011 4 THE ASSESSEE HAS NOT FULFILLED ANY OF THE ABOVE CO NDITION OR ESTABLISHED ANY EXCEPTIONAL CIRCUMSTANCES. THE MERE FACT THAT THE EVIDENCE SOUGHT TO BE PRODUCED IS VITAL/IMPORTANT DOES NOT CONSTITUTE SUFFICIENT CAUS E TO ALLOW ITS ADMISSION AT THE APPELLATE STAGE. IT IS FOR THE PARTY SEEKING TO ADDUCE ADDITIONAL EVIDENCE TO COME WITHIN THE FOUR CORNERS OF RULE 46A. IT IS TRITE L AW THAT EVIDENCE CAPABLE OF BEING ADDUCED SHOULD BE CREDIBL E FROM THE RELEVANCY AND MATERIALITY POINT OF VIEW. THE ONUS IS ON THE PERSON SEEKING TO ADDUCE ADDITIONAL EVIDENCE TO PROVE THE CIRCUMSTANCES ENABLING HIM TO DO SO. IT IS INDEED INCORRECT ON THE PART OF THE ASSE SSEE TO ASSERT THAT THE SAME HAD NOT BEEN CALLED FOR BY THE ASSESSING OFFICER. YOUR HONOUR IT IS MY HUMBLE SUBMISSION THAT THE ASSESSEES SUBMISSIONS HOLD NO GROUND AND THE ASSESSEES APPEAL NEEDS TO BE REJECTED. 5. A CAREFUL PERUSAL OF REJOINDER FILED BY THE ASSE SSEE WHICH IS AVAILABLE ON PAGE 113D AND 113E OF THE PAPER BOOK SHOWS THE REASONS WHICH PREVENTED HIM FROM FURNISHING THE RELEVANT EVIDENCE AT THE TIME OF HEARING BEFORE THE AO:- 5. THE CHRONOLOGY OF THE EVENTS REFLECT AS UNDER: 23.12.2009: THE ASSESSEE APPEARED BEFORE THE LD. A SSESSING AUTHORITY AND FILED COMPREHENSIVE DETAILS. 24.12.2009: FRESH DETAILS ARE SOUGHT FROM THE AS SESSEE. 25.12.2009: XMAS HOLIDAY 26.12.2009: SATURDAY 27.12.2009: SUNDAY ITA 2958/DEL/2011 5 29.12.2009: THE ASSESSEE SUBMITTED REMAINING DETA ILS. NO FURTHER OPPORTUNITY AFFORDED TO THE ASSESSEE TO SUBMIT CLARIFICATIONS. 6. KEEPING IN VIEW THE AFORESAID FACTS AND CIRCUM STANCES OF THE CASE THE ASSESSEE HEREBY SUBMITS THAT THE A PPELLANT IS COVERED BY EXCEPTIONS PROVIDED IN RULE 46A AND P RAYS FOR DISPOSAL OF ITS APPEAL ON MERITS AFTER CONSIDER ING THE DOCUMENTS FILED BEFORE THIS HON. COURT. 6. THE REPRESENTATIVE OF THE ASSESSEE APPEARING BEF ORE US FORCEFULLY ALLEGED THAT THE ASSESSEE WAS NOT GIVEN THE OPPORTU NITY TO BE HEARD AND TO SUBMIT RELEVANT DOCUMENTS BY THE AO BEFORE PASSING THE ASSESSMENT ORDER. LD. CIT(A)-XIX IN PARA 7 OF THE IMPUGNED ORDER HE LD THAT THE PROCEEDINGS WERE TAKEN UP BY THE AO JUST BEFORE THE LIMITATION DATE FOR PASSING THE ORDER WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESS EE TO FILE THE DOCUMENTS CALLED FOR AND DESIRED BY THE ASSESSEE TO FURNISH T O SUPPORT ITS CONTENTIONS ON THE ISSUES RAISED IN THE ASSESSMENT PROCEEDINGS. I N THE SAME PARA THE FIRST APPELLATE AUTHORITY ALSO HELD THAT THE ADDITIONAL E VIDENCE WAS FOUND CRUCIAL AND NECESSARY TO DECIDE THE ISSUE RAISED BY THE ASS ESSEE BEFORE HIM. THEREFORE THE ADDITIONAL DOCUMENTARY EVIDENCE IS A DMITTED. 7. ON CAREFUL PERUSAL OF THE ORDER OF AO DATED 31.1 2.2009 AND REJOINDER FILED BY THE ASSESSEE TO THE REMAND REPORT AT PAGE NO. 113D AND 113E OF THE PAPER BOOK WE OBSERVE THAT ON 23.12.2009 THE ASSE SSEE APPEARED BEFORE THE AO AND FILED COMPREHENSIVE DETAILS. ON 24.12.2 009 THE AO ASKED FOR ITA 2958/DEL/2011 6 FRESH DETAILS FROM THE ASSESSEE. NEXT THREE DAYS I .E. 25.12.2009 26.12.2009 AND 27.12.2009 WERE PUBLIC HOLIDAYS PERTAINING TO C HRISTMAS SATURDAY AND SUNDAY RESPECTIVELY. ON 29.12.2009 THE ASSESSEE S UBMITTED REMAINING DETAILS AND NO FURTHER OPPORTUNITY WAS OFFERED TO T HE ASSESSEE TO SUBMIT THE CLARIFICATION. ALTHOUGH THE LD. DR SUPPORTED THE P ROCEDURE ADOPTED BY THE AO BUT DID NOT DISPUTE THE DATES OF CHRONOLOGICAL E VENTS STATED IN THE REJOINDER BY THE ASSESSEE. 8. THEREFORE AFTER CAREFUL PERUSAL AND CONSIDERATI ON OF THE RIVAL ARGUMENTS PLACED BEFORE US BY BOTH THE PARTIES WE ARE OF THE VIEW THAT THE AO DID NOT PROVIDE AN OPPORTUNITY TO THE ASSESSEE T O SUBMIT RELEVANT EVIDENCE AND DOCUMENTS REGARDING CLARIFICATIONS ASK ED BY THE AO HIMSELF BEFORE PASSING THE ASSESSMENT ORDER. THEREFORE WE ARE CONSTRAINED TO NOTE THAT THE AO VIOLATED THE PRINCIPLES OF NATURAL JUST ICE AND THE FINDINGS OF THE LD. CIT(A) IN PARA 7 OF IMPUGNED ORDER ARE FOUND TO BE JUST AND PROPER. 9. IT IS EVIDENT FROM A PERUSAL OF RULE 46A OF THE RULES THAT THE ASSESSEE IS NOT ENTITLED TO PRODUCE FRESH ORAL OR DOCUMENTAR Y EVIDENCE AS A MATTER OF RIGHT IN APPEAL. HOWEVER UNDER CERTAIN CIRCUMSTA NCES AS MENTIONED IN CLAUSE (A) (B) (C) AND (D) OF SUB-RULE(1) OF RULE 4 6A ADDITIONAL EVIDENCE CAN BE FILED. SUB-RULE (2) OF RULE 46A CASTS A DUTY ON THE AUTHORITY CONCERNED TO RECORD REASONS IN WRITING FOR ADMISSION OF ADDITION AL EVIDENCE. UNDER SUB- ITA 2958/DEL/2011 7 RULE (3) OF THE RULE 46A FURTHER REQUIREMENT IS TH AT THE APPELLATE AUTHORITY SHALL NOT TAKE INTO ACCOUNT ANY EVIDENCE PRODUCED U NDER SUB-RULE (1) UNLESS THE AO HAS BEEN ALLOWED A REASONABLE OPPORTUNITY TO EXAMINE THE EVIDENCE OR 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. 10. SECTION 250(4) OF THE ACT READS AS UNDER:- SECTION 250(4) THE COMMISSIONER (APPEALS) MAY BEFORE DISPOSING OF ANY APPEAL MAKE SUCH FURTHER INQUIRY AS HE THINKS FIT OR MAY DIRECT THE ASSESSI NG OFFICER TO MAKE FURTHER INQUIRY AND REPORT THE RESU LT OF THE SAME TO THE COMMISSIONER (APPEALS). THE ABOVE PROVISION IS OF ENABLING NATURE WHICH PRO VIDES AN OPTION TO THE LD. CIT(A) THAT IF HE THINKS FIT HE MAY DIRECT THE AO OR HE MAY HIMSELF MAKE FURTHER ENQUIRY BEFORE DISPOSAL OF APPEAL. 11. IN THE CASE OF KESAR MILLS CO. LTD. VS CIT MUM BAI (NORTH) AHMEDABAD REPORTED AS 1965 56 ITR (SC) 365 THE HON BLE SUPREME COURT FROM THE BENCH OF SEVEN HONBLE JUDGES OBSERVED THAT THE PROCEEDINGS TAKEN FOR RECOVERY OF TAX UNDER THE PROVISIONS OF THE ACT ARE NATURALLY INTENDED TO BE OVER WITHOUT UNNECESSARY DELAY AND SO IT IS NATU RALLY THE DUTY OF THE PARTIES BOTH THE DEPARTMENT AND THE ASSESSEE TO L EAD THEIR EVIDENCE AT THE STAGE WHEN THE MATTER IS IN CHARGE OF INCOME TAX OF FICER. ITA 2958/DEL/2011 8 12. DUE TO ABOVE EXPECTATION OF TAXATION PROCEDURE RULE 46A STARTS IN A NEGATIVE MANNER SAYING THAT AN APPELLANT SHALL NOT BE ENTITLED TO PRODUCE ANY EVIDENCE WHETHER ORAL OR DOCUMENTARY OTHER THAN T HE EVIDENCE ADDUCED BY HIM BEFORE THE ASSESSING OFFICER. AFTER THIS GENER AL STATEMENT EXPECTATIONS HAVE BEEN CARVED OUT THAT IN CERTAIN CIRCUMSTANCES IT WOULD BE OPEN TO THE CIT(A) TO ADMIT ADDITIONAL EVIDENCE. THEREFORE WE ARE OF THE OPINION THAT ADDITIONAL EVIDENCE CAN BE PRODUCED AT THE FIRST AP PELLATE STAGE WHEN CONDITIONS UNDER CERTAIN CIRCUMSTANCES STIPULATED I N CLAUSES (A) (B) (C) AND (D) OF SUB-RULE (1) OF RULE 46(A) ARE SATISFIED AND FINDING IN THIS REGARD HAS BEEN RECORDED BY THE FIRST APPELLATE AUTHORITY. 13. THE MAIN OBJECT OF ABOVE DISCUSSION IS THAT THE PRE-CONDITIONS PRESCRIBED IN RULE 46A MUST BE SHOWN TO EXIST BEFOR E ADDITIONAL EVIDENCE IS ADMITTED AND EVERY PROCEDURAL REQUIREMENT MENTIONED IN THE RULE HAS TO BE STRICTLY COMPLIED WITH SO THAT THE RULE IS MEANINGF ULLY EXERCISED. POWERS CONFERRED BY RULE 46A TO THE CIT(A) WHILE ADMITTIN G ADDITIONAL EVIDENCE AT FIRST APPELLATE STAGE ARE NOT EXPECTED TO BE EXERC ISED IN ROUTINE MECHANICAL OR CURSORY MANNER. WHILE DEALING WITH THE APPEAL THE CIT(A) SHOULD RECOGNIZE AND MAINTAIN DISTINCTION BETWEEN A CASE W HERE THE ASSESSEE INVOKES RULE 46A TO ADDUCE ADDITIONAL EVIDENCE BEFO RE HIM AND WHERE WITHOUT BEING PROMPTED BY THE ASSESSEE THE CIT(A) CONSIDERS IT FIT TO MAKE ITA 2958/DEL/2011 9 A FURTHER ENQUIRY BY VIRTUE OF THE POWERS VESTED IN HIM UNDER SUB-SECTION (4) OF SECTION 250 OF THE ACT. WHEN THE CIT(A) EXERCIS ES HIS STATUTORY POWERS SUO MOTO UNDER SECTION 250(4) OF THE ACT THE REQUI REMENT OF RULE 46A NEED NOT BE FOLLOWED. BUT WHENEVER THE ASSESSEE IN AN A PPEAL INVOKES RULE 46A FOR SUBMISSION OF ADDITIONAL EVIDENCE IT IS INCUMB ENT UPON THE CIT(A) TO COMPLY WITH THE REQUIREMENT OF THE RULE STRICTLY. 14. LD. AR APPEARING BEFORE US SUBMITTED A CERTIFIC ATE IN RESPECT OF DOCUMENTS COMPILED IN THE APPEAL PAPER BOOK STATING THE DETAILS REGARDING SUBMISSION OF EVIDENCE BEFORE THE AO AND THE CIT(A) . THE CERTIFICATE ITSELF SHOWS THAT DOCUMENTS STATED IN SL.NO. 7 8 11 12( II) 13 16 TO 23 26(I) 27 AND 28 WERE NOT BEFORE THE AO AND THIS ADDITIONAL D OCUMENTARY EVIDENCE WAS ADMITTED BY THE LD. CIT(A) WITHOUT COMPLYING WI TH THE PROVISIONS OF RULE 46A(3). 15. IN PARA 7 OF THE IMPUGNED ORDER THE OBSERVATIO N OF LD. CIT(A) IS IN ACCORDANCE WITH CLAUSES (B) AND (C) OF SUB-RULE (1) OF RULE 46A UNDER WHICH THE FIRST APPELLATE AUTHORITY IS REQUIRED TO RECORD REASONS FOR ADMITTING THE ADDITIONAL EVIDENCE. THEREFORE IN THE FACTS AND C IRCUMSTANCES OF THE PRESENT CASE WE HOLD THAT THE LD. CIT(A) COMPLIED WITH THE REQUIREMENTS OF SUB-RULE (1) AND (2) OF RULE 46A. ITA 2958/DEL/2011 10 16. THIS IS TO STATE FURTHER THAT SUB-RULE (3) OF R ULE 46A INTERDICTS THE LD. CIT(A) FROM TAKING INTO ACCOUNT ANY EVIDENCE PRODUC ED BY THE ASSESSEE FOR THE FIRST TIME BEFORE HIM UNLESS THE AO HAS HAD A R EASONABLE OPPORTUNITY OF EXAMINING THE EVIDENCE AND REBUT THE SAME AND THIS SUB-RULE(3) HAS TO BE COMPLIED BY HIM. AT THIS STAGE ON A CAREFUL PERUS AL OF SO-CALLED REMAND REPORT OF THE AO DATED 8.2.2010 WE OBSERVE THAT TH E AO ONLY OBJECTED THE ADMISSIBILITY OF ADDITIONAL EVIDENCE BUT HE RESISTE D HIMSELF BY OFFERING COMMENTS AFTER EXAMINATION OF ADDITIONAL EVIDENCE. 17. WE ALSO OBSERVE THAT THERE IS NOTHING IN THE OR DER OF LD. CIT(A) TO SHOW THAT THE AO WAS CONFRONTED WITH THE ADDITIONAL EVIDENCE AND ASKED FOR COMMENT AS PER STATUTORY REQUIREMENT OF RULE 46A(3) . THUS THE END RESULT HAS BEEN THAT ADDITIONAL EVIDENCE WAS ADMITTED AND ACCEPTED AS GENUINE WITHOUT PROVIDING OPPORTUNITY TO THE AO FOR EXAMINA TION AND VERIFICATION OF ADDITIONAL EVIDENCE. WE FURTHER OBSERVE THAT SINCE IT IS AN INDISPENSABLE REQUIREMENT WE ARE OF THE VIEW THAT THE LD. CIT(A) OUGHT TO HAVE SENT THE ADDITIONAL EVIDENCE ADMITTED BY HIM UNDER SUB-RULE (1) AND (2) OF RULE 46 A OF THE RULES TO THE AO FOR EXAMINATION VERIFICA TION AND GIVING HIM AN OPPORTUNITY TO REBUT AND COMMENT OVER THE SAME COM PLYING WITH THE PROVISION UNDER SUB-RULE (3) OF RULE 46A. ITA 2958/DEL/2011 11 18. WE ALSO OBSERVE THAT THE ERROR COMMITTED BY THE LD. CIT(A) IS THAT HE PROCEEDED TO MIX UP HIS POWERS UNDER SUB-SECTION (4 ) OF SECTION 250 OF THE ACT WITH THE POWERS VESTED IN HIM UNDER RULE 46A. T HE LD. CIT(A) SEEMS TO HAVE OVERLOOKED SUB-RULE (4) OF RULE 46A WHICH ITS ELF TAKES NOTE OF DISTINCTION BETWEEN THE POWERS CONFERRED BY STATUTE WHILE DISPOSING OF THE ASSESSEES APPEAL AND THE POWERS CONFERRED UPON HIM UNDER RULE 46A. THUS THE LD. CIT(A) ERRED IN INTERPRETATION OF THE PROVISIONS OF RULE 46A VIS--VIS SECTION 250(4) OF THE ACT. 19. IF THE PRACTICE PROCEDURE AND THE VIEW TAKEN B Y THE CIT(A) WHILE DECIDING THE APPEAL OF THE ASSESSEE IS ACCEPTED T HE PROVISIONS OF SUB-RULE (3) OF RULE 46A WOULD BECOME OTIOSE AND IT WOULD CR EATE A POSSIBILITY THAT THE ADDITIONAL EVIDENCE SOUGHT TO BE INTRODUCED BY AN ASSESSEE BEFORE THE CIT(A) COULD NOT BE SUBJECTED TO THE CONDITIONS PR ESCRIBED IN RULE 46A BECAUSE IN ANY CASE THE CIT(A) IS VESTED WITH COTE RMINOUS POWERS OVER THE ASSESSMENT ORDERS OR POWERS OF INDEPENDENT ENQUIRY UNDER SUB-SECTION (4) OF SECTION 250 OF THE ACT. THE CONSEQUENCE OF THIS IN TERPRETATION OF ABOVE STATUTORY PROVISIONS WOULD MEAN THAT ADDITIONAL EVI DENCE BY THE ASSESSEE AT FIRST APPELLATE STAGE WOULD BE ALLOWED WITHOUT FOLL OWING STATUTORY PROVISIONS OF RULE 46A AND THIS INTERPRETATION CANN OT BE ALLOWED OR COUNTENANCED. ITA 2958/DEL/2011 12 20. FOR THE ABOVE REASONS THE ISSUE RELATING TO AD DITIONS OF RS.11 84 45 205(RS.5 00 00 000+RS.5 00 00 000+1 00 00 000+84 45 205) FROM UNDISCLOSED SOURCES BY THE AO IN THE ASSESSMEN T ORDER PASSED U/S 143(3) OF THE ACT IS RESTORED TO THE FILE OF THE LD . CIT(A) WHO SHALL COMPLY WITH THE REQUIREMENTS OF RULE 46A AND SHALL ADJUDIC ATE THE MATTER BY TAKING A FRESH DECISION ON THE MERITS OF THE CASE IN ACCOR DANCE WITH THE ACT AND THE PROCEDURE PRESCRIBED BY THE RULES MADE THEREUNDER. 21. ON THE BASIS OF ABOVE DISCUSSION WE CONCLUDE T HAT THIS APPEAL BY THE REVENUE IS DISPOSED OF WITH ABOVE DIRECTIONS TO THE CIT(A). 22. IN THE RESULT THE APPEAL OF THE REVENUE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH MARCH 2012. SD/- SD/- (A.N. PAHUJA) (CHANDRA MOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 30TH MARCH 2012 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR ITA 2958/DEL/2011 13