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Income Tax Officer, Income Tax Officer, Ward----46(3) New Delhi. Vs.. Mrs... Anvita Ab Anvita Ab Anvita Abbi 70, Dakshin Puram, 70, Dakshin Puram, Jawaharlal Nehru University, Jawaharlal Nehru University, New Delhi New Delhi 110 067.
September, 25th 2013
                IN THE INCOME TAX APPELLATE TRIBUNAL
                                  `A' : NEW DELHI
                     DELHI BENCH `A

                        G.D.AGRAWAL, VICE PRESIDENT AND
            BEFORE SHRI G.D.AGRAWAL,
                       R.K.GUPTA, JUDICIAL MEMBER
                  SHRI R.K.GUPTA,

                             No.3707/Del/2011
                         ITA No.3707/Del/2011
                                         2008-09
                       Assessment Year : 2008-


Income Tax Officer,             Vs.                Abbi,
                                       Mrs. Anvita Abbi,
Ward-
Ward-46(3),                            70, Dakshin Puram,
New Delhi.                             Jawaharlal Nehru University,
                                       New Delhi ­ 110 067.
                                       PAN : AAFPA0510L.
      (Appellant)                          (Respondent)

              Appellant by      :     Ms. Y.Kakkar, Sr.DR.
              Respondent by     :     Shri P.J.Khanna, CA.

                                 ORDER

    G.D.AGRAWAL, VP :
PER G.D.AGRAWAL,
       This appeal by the Revenue is directed against the order of
learned CIT(A)-XXX, New Delhi dated 25th May, 2011 for the AY 2008-
09.


2.     The Revenue has raised the following grounds:-


       "On the facts and circumstances of the case and in law, the
       ld.CIT(A) has erred in :

       (I)   deleting the addition of Rs.14,00,000/- rightly made
       by the Assessing Officer on account of unexplained
       investment in REC Bonds;

       (II)  allowing the assessee to produce any evidence
       before him which is in violation of Rule 46A(1) of the
       I.T.Rules 1962;

       (III) admitting the evidences produce by the assessee
       without recording the reasons in writing for doing so which
       is in violation of Rule 46A(2) of the I.T.Rules 1962;
                                   2                       ITA-3707/Del/2011







      (IV) not allowing the Assessing Officer a reasonable
      opportunity to examine and rebut the said evidences
      produced by the assessee, which is in violation of Rule
      46A(3) of the I.T.Rules 1962."

3.    At the time of hearing before us, it was stated by the learned DR
that the assessee did not appear before the Assessing Officer and did
not explain the source of investment of `14,00,000/- in Rural
Electrification Corporation Ltd. (REC) Bonds. Therefore, the Assessing
Officer rightly made the addition thereof. That the assessee furnished
fresh evidence before the learned CIT(A). That the CIT(A) admitted the
same and, relying upon the fresh evidence, allowed relief to the
assessee. That the action of the CIT(A) is in clear violation of Rule 46A
of the Income-tax Rules, 1962.     She, therefore, submitted that the
order of CIT(A) should be reversed and that of the Assessing Officer
may be restored.


4.    The learned counsel for the assessee, on the other hand, stated
that the assessee is a Professor in Jawaharlal Nehru University. During
the relevant time when the assessment proceedings were in progress,
she was outside India, therefore, could not appear before the
Assessing Officer. That the investment in REC Bonds was not made by
the assessee but her husband Mr. Satish Chand Abbi. That Mr. Satish
Chand Abbi made the above investment out of the sale of ancestral
property. The evidences furnished before the learned CIT(A) were only
those details which were already furnished in the income tax record of
Mr. Satish Chand Abbi.     He, therefore, submitted that the order of
learned CIT(A) is quite fair and reasonable.      The same should be
sustained.
                                  3                     ITA-3707/Del/2011


5.   We have carefully considered the arguments of both the sides
and perused the material placed before us. Rule 46A of the Income-
tax Rules reads as under:-

       Production of additional evidence before the [Deputy
     "[Production                                      Deputy
                   (Appeals)] [and
     Commissioner (Appeals)                               .
                                                (Appeals)].
                               and Commissioner (Appeals)

     46A. (1) The appellant shall not be entitled to produce
     before the [Deputy 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 [Deputy Commissioner (Appeals)] [or, as the case may
     be, the Commissioner (Appeals)] records in writing the
     reasons for its admission.

      (3) The [Deputy 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
                                     4                        ITA-3707/Del/2011


      (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 [Deputy 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.]."




6.    Admittedly, learned CIT(A) admitted the fresh evidences but did
not allow any opportunity to the Assessing Officer for examining those
evidences or furnishing any evidence in rebuttal as required by sub-
rule (3) of Rule 46A.       Therefore, the order of learned CIT(A) is in
violation of Rule 46A. In view of the above, we set aside the orders of
authorities below and restore the matter to the file of the Assessing
Officer. We direct the assessee to produce all the evidences before the
Assessing Officer.    The Assessing Officer is also directed to allow
adequate opportunity to the assessee to produce all these evidences
before him.   The Assessing Officer will readjudicate the issue afresh
after considering all the evidences as may be furnished by the
assessee before him.


7.    In the result, the appeal of the Revenue is deemed to be allowed
for statistical purposes.
      Decision pronounced in the open Court on 20th September, 2013.


                   Sd/-                                Sd/-
             R.K.GUPTA)
            (R.K.GUPTA)                        (G.D.AGRAWAL)
         JUDICIAL MEMBER                       VICE PRESIDENT

Dated : 20.09.2013
VK.
                                  5                       ITA-3707/Del/2011




Copy forwarded to: -

1.   Appellant : Income Tax Officer,
                  Ward-46(3), New Delhi.
                  Ward-
2.   Respondent : Mrs. Anvita Abbi,
                  70, Dakshin Puram,
                  Jawaharlal Nehru University, New Delhi ­ 110 067.

3.   CIT
4.   CIT(A)
5.   DR, ITAT

                             Assistant Registrar

 
 
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