R.K.GULATI, J. - (1.) THIS is an application under S. 256(2) of the IT Act, in which following question of law has been proposed : "Whether, on the facts and circumstances of the case, the Tribunal was correct in law in confirming the deletion of Rs. 2,05,175 by the first appellate authority who had given a relief in contravention of r. 46A of IT Rules, 1962 by entertaining new facts/evidence which inspite of asking were not produced before the Assessing Officer ?" The application has been filed at the instance of CIT, Agra, with the prayer that the Tribunal be directed to draw up a statement of case and refer the aforesaid question of law to this Court.
(2.) WE have heard learned counsel for the parties and do not feel inclined to grant the said prayer. The addition, which has been referred to in the proposed question as Rs. 2,05,175 was, in fact, to the extent of Rs. 2,95,175. This addition was made by the ITO on the allegation that the assessee had shown the sale of engines in excess of those recorded in the stock register. In appeal the assessee filed written submissions supported by bills, vouchers, etc. The case taken up was that the engines which were said to have been sold in excess of the stock, were in fact replacement, which the assessee was obliged to replace under the terms of 'warranty'. The written submissions were forwarded to the ITO for this comments and thereafter on consideration of the materials placed before the appellate authority, the CIT(A) deleted the addition to the extent of Rs. 2,05,175. The second appeal filed by the Revenue against the order of the appellate authority was also dismissed.
(3.) IT is evident from the above that the deletion of Rs. 2,05,175 came to be made on appreciation of the materials, that was placed on record of the case. There was, in fact, no additional evidence adduced by the assessee before the appellate authority. We invited learned standing counsel for the Department to point out the additional evidence, that was entertained and had not been placed before the ITO, but nothing could be pointed out to us.;