Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 443 (GAU)

Tijender Kaur v. Commissioner of Income Tax

2009-06-24

HRISHIKESH ROY, RANJAN GOGOI

body2009
JUDGMENT Ranjan Gogoi, J. 1. Heard Mr. S. Chetia, learned Counsel appearing for the appellant and Mr. U. Bhuyan, learned standing counsel, Income Tax Department. 2. This appeal by the assessee is against an order dated August 30, 2006, passed by the Income Tax Appellate Tribunal, Guwahati Bench, Guwahati, in I. T. A. No. 108 (Gau) of 2006 interfering with the order dated March 17, 2005, passed by the learned Commissioner of Income Tax (Appeals). By the aforesaid order, the learned Commissioner (Appeals) has interfered with the assessment of the appellant-assessee for the assessment year 2001-02 made under the provisions of Section 144 of the Income Tax Act, 1961. 3. The detail of facts need not detain the court, save and except that the learned Commissioner of Income Tax (Appeals) had interfered with the assessment under Section 144 on satisfaction that proof of service of notice on the assessee was not forthcoming and, that apart, the proprietor of the assessee-firm having died, the legal heirs were prevented by sufficient cause from causing production of books of account of the assessee. Accordingly, the learned Commissioner looked into the said books of account produced by the assessee before him and came to the conclusion that the assessment completed by the Assessing Officer was liable to revision. 4. Aggrieved, the Revenue went in appeal before the learned Tribunal. The learned Tribunal, taking into account the provisions contained in Rule 46A of the Income Tax Rules and upon due consideration of what has been provided for by Sub-rule (3) of Rule 46A, came to the conclusion that the fresh evidence introduced by the assessee was without an opportunity to the Assessing Officer and, therefore, the procedure adopted by the learned first appellate authority, leading to the order dated March 17, 2005, was in violation of the provisions of Rule 46A(3) of the Income Tax Rules. Accordingly, the learned Tribunal remanded the matter to the learned Commissioner (Appeals) with a direction that he should allow the Assessing Officer an opportunity on the fresh evidence introduced by the assessee and, thereafter, decide the matter in accordance with law. 5. We have perused the order of the learned Tribunal under challenge in the appeal. We have also read and considered the provisions contained in rule 46A of the Income Tax Rules. 6. 5. We have perused the order of the learned Tribunal under challenge in the appeal. We have also read and considered the provisions contained in rule 46A of the Income Tax Rules. 6. The learned Counsel for the appellant at the outset has placed before the court Sub-rule (4) of Rule 46A to contend that in situation covered by the aforesaid Sub-rule (4), opportunity to the Assessing Officer is not contemplated. We do not think it necessary to dilate the aforesaid aspect of the case and record our views in the matter, inasmuch, as we are satisfied that the facts of the present case clearly attract the provisions contained in Sub-rule (3) of Rule 46A and not those contained in Sub-rule (4). 7. The learned Counsel for the appellant has relied on a judgment of the Orissa High Court in the case of B.L. Choudhury v. CJT reported in [1976] 105 ITR 371 in support of the contention advanced. We have perused the decision of the Hon'ble Orissa High Court in B.L. Choudhury [1976] 105 ITR 371. In the aforesaid case, the Hon'ble Orissa High Court was primarily considering the scope and ambit of the provisions of Section 250(4) of the Income Tax Act in a situation where further enquiry was made by the Appellate Assistant Commissioner in the course of which enquiry the assessee was allowed to introduce fresh materials or evidence. The scope and ambit of the said power is not an issue in the present case. Another decision of the Bombay High Court in the case of Smt. Prabhavati S. Shah v. CIT reported in [1998] 231 ITR 1 has also been relied upon by the learned Counsel for the appellant-assessee. Reading the aforesaid judgment, we find that in the said case the Bombay High Court was considering the scope and ambit of the power under Rule 46A of the Income Tax Rules in a situation where additional evidence sought to be introduced by the assessee was refused. The aforesaid decision, therefore, cannot have any application to the present case. 8. In the present case, admittedly additional evidence was sought to be introduced by the assessee before the first appellate authority which was so permitted. The aforesaid decision, therefore, cannot have any application to the present case. 8. In the present case, admittedly additional evidence was sought to be introduced by the assessee before the first appellate authority which was so permitted. Thereafter, such additional materials were considered by the first appellate authority in coming to a conclusion different from what was recorded by the Assessing Officer in the assessment made under Section 144 of the Act. No opportunity was given to the Assessing Officer with regard to the additional materials or evidence that was introduced by the assessee, though under Sub-rule (3) of Rule 46A such a requirement is clearly spelt out. It is such a situation that the learned Tribunal has held that the order of the first appellate authority was contrary to the provisions of Rule 46A(3) of the Rules. Reading the provisions of the aforesaid Sub-rule (3) of Rule 46A which are clear and unambiguous and do not admit any contrary view, we do not see as to how any infirmity can be found in the order of the learned Tribunal. 9. We, therefore, find no merit in this appeal. The appeal is, accordingly, dismissed. The order dated August 30, 2006, passed by the Income Tax Appellate Tribunal, Guwahati Bench, Guwahati, in I.T.A. No. 108 (Gau) of 2006 is affirmed.