| The Tax Publishers2021 TaxPub(DT) 0136 (Del-HC) : (2021) 431 ITR 0148 : (2021) 278 TAXMAN 0239 INCOME TAX ACT, 1961
Section 254 Rule 29
Where assessee filed application for admission of additional evidence in terms of rule 29 of ITAT Rules, 1963 prior to commencement of final hearing before Tribunal but there was no reference to either the additional documents placed on record by assessee or to the written submissions/synopsis filed by assessee in Tribunal's order, then it could not be held that additional evidence filed by assessee was considered by Tribunal, as it would mean to presume and assume certain facts which were not apparent from the record.
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Appeal (Tribunal) - Validity of Tribunal's order - Contention of assessee that Tribunal passed order without dealing with application filed for admission of additional evidence -
Assessee filed application for admission of additional evidence in terms of rule 29 prior to commencement of final hearing before Tribunal. Case of assessee was that Tribunal passed order without dealing with the application filed for admission of additional evidence. Thereafter, assessee preferred an application for rectification under section 254(2). However, no order was pronounced by Tribunal on application filed under section 254(2). Held: In instant case, as last date for availing the benefit of amnesty scheme being 'Vivad Se Vishwas Scheme' was 31-12-2020 and despite all efforts, Tribunal is not deciding the application for rectification under section 254(2), Court opined that if instant appeal was not entertained, it would gravely prejudice assessee. In order passed by Tribunal, there was no reference to either the additional documents placed on record by assessee or to the written submissions/synopsis filed by assessee. To hold that the additional evidence filed by assessee had been considered by the Tribunal would be to presume and assume certain facts, which were not apparent from the record. Instant appeal was allowed and the order of the Tribunal was set aside. Appeal of assessee was restored to the file of the Tribunal for de novo hearing.
Followed:Jyotsna Suri v. ITAT & Ors. (2003) 179 CTR 265 (SC) : 2003 TaxPub(DT) 37 (SC).
REFERRED : N Balakrishnan v. M. Krishnamurthy 1998 (7) SCC 123 : 2008 TaxPub(EX) 1737 (SC) Collector, Land Acquisition v. Katiji & Ors. (1987) 2 SCC 107 (SC) : 1987 TaxPub(DT) 1279 (SC), HL Malhotra And Company Pvt. Ltd. v. Dy. CIT [ITA 211/2020 & CM APPLs.32045-32047/2020, dt. 17-12-2020], CIT v. Rao Raja Hanut Singh 2001 252 ITR 528 Raj : 2001 TaxPub(DT) 1030 (Raj-HC) and H.L. Malhotra & Company Pvt. Ltd. v. Dy. CIT [ITA No.3613/Del/2015, dt. 28-2-2019].
FAVOUR : Matter remanded.
A.Y. :
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