A trading company's assessment for assessment year 2021-22 added Rs 1.9 crore under the cash credit provision for unexplained share application money from four subscribers, the officer holding that the confirmations filed were unsigned and the bank statements incomplete. During the appeal the company obtained complete bank statements, audited accounts and income-tax acknowledgements for all four subscribers and filed them with a written application to admit them as additional evidence, explaining that the officer had allowed only seven days to respond to the final show cause. The appellate authority admitted the papers without calling for a remand report. It then issued a notice proposing enhancement of Rs 68 lakh on a wholly different matter, namely a sundry creditor balance outstanding since 2016 that the assessment order never mentioned. The company had also asked for a video hearing in the faceless appeal and received no link before the enhancement notice was issued. It has paid the tax on its returned income but the appeal was filed 41 days after service of the demand notice.
Ask the appellate authority in writing to call for a remand report on the additional evidence you yourself filed. It sounds counterintuitive, because the papers have already been admitted, but relief obtained without the assessing officer having had a reasonable opportunity to examine the evidence is exposed on the department's appeal. Spending a few weeks on a remand report now is far cheaper than having a deletion set aside two years later and the whole issue restored, and it also puts the appellate authority on notice that the proceeding must be conducted properly, which matters for the enhancement point that follows.
The library records that the additional evidence rule allows evidence only through four defined gateways and that the appellate authority may not take that evidence into account unless the assessing officer has been given a reasonable opportunity to examine and rebut it. It also records a case where the first appellate authority refused evidence saying no application had been filed when one was in fact on record, and the order was set aside for that reason. Put the application on record with a dated acknowledgement, and state which gateway applies, here the denial of sufficient opportunity.
The library records that where additional evidence is admitted on the assessee's application, giving the assessing officer a reasonable opportunity to examine it or cross-examine is mandatory, and a deletion made without that opportunity could not stand. The practical consequence runs against the taxpayer as much as the department. A deletion that survives the department's appeal is worth more than a quick one that does not.
The library holds that the additional evidence rule fetters the assessee's right to produce evidence but does not restrain the appellate authority's own powers to make further inquiry or to direct inquiry, and that where the facts justify it and the evidence appears prima facie necessary to examine the claim it may be taken on record. The same collection records that the first appellate authority may entertain a ground not raised before the assessing officer where it is raised bona fide and could not reasonably have been raised earlier. Frame the request as an invitation to the authority to exercise its own inquiry power, not as an assertion of a right.
The library is consistent that the power to confirm, reduce, enhance or annul is plenary and coterminous with the assessing officer's, and requires a reasonable opportunity of showing cause before any enhancement, but that it stops at the boundary of the assessment. Enhancement is restricted to the subject-matter of the assessment or a source considered expressly or by clear implication by the officer from the point of view of taxability; a source he never examined cannot be brought in, and a first appeal cannot introduce a new source by deleting one addition and taxing something else instead. Where the department wants that income taxed, the library records that the route is reassessment or revision, not enhancement. The library now also carries what the notice itself has to convey: the bar operates unless there has been an opportunity of showing cause against that enhancement, which is where the argument about a thin notice lives, so take the jurisdictional objection first, then ask in writing for the particulars the notice omits and record that cause cannot be shown until they are given.
The library records that the appellate authority must dispose of the appeal in writing stating the points for determination, the decision on each and the reasons, and has no power to dismiss for non-prosecution. It also records that a virtual hearing is mandatory once specifically requested in faceless appellate proceedings, and that failure to provide the link despite the request vitiates the order. Put the unanswered video hearing request on record now, because it is a ground that survives whatever the appellate authority eventually decides. On timing, by contrast, the library now records that the one-year period in the same section for hearing and deciding the appeal carries no consequence for breach, so pendency belongs in a stay application, or at the extreme in a writ seeking a direction to decide, and not in the grounds of appeal.
The library records that payment of the tax due on the returned income is a condition for admission of the first appeal and is a bar the appellate authority does and can apply, though the expression tax for that purpose does not include the interest charged under the advance tax and default provisions. On delay, the library records a liberal, justice-oriented construction of sufficient cause and a case where over a year's delay caused by illness was condoned and the appeals remanded for decision on merits. File a properly supported condonation application rather than relying on the appellate authority overlooking the date.
The library records that once an appeal is filed it is not open to the assessee to withdraw it, just as the authority cannot dismiss it for non-prosecution, so withdrawal is not an exit from an enhancement notice. If the company wins on the main addition and loses on a subsidiary ground, the library records that a respondent may support the order appealed against on a ground decided against him without filing a cross-objection, though that is purely defensive. A legal point arising from facts already on record can also be raised for the first time before the Tribunal.
An enhancement built on a creditor balance the assessment order never touched is usually vulnerable, because the library's authorities on the new source boundary are consistent and long-standing. The additional evidence generally stays on record, but a deletion granted without a remand report frequently comes back on the department's appeal, which is why the report is worth asking for. The unanswered video hearing request often produces a set aside and a fresh hearing rather than a decision on the merits, so it buys process rather than result.