This is Revenue s appeal directed against order of learned CIT(A)- XXVI, Mumbai dt. 28th March, 2003 for asst. yr. 1998-99. Grounds No. 1 and 2 are inter-connected, which read as under: (1) On facts and circumstances of case and in law, learned CIT(A) erred in holding that loss of Rs. 43,75,630 having arisen on account of share transactions of Rs. 22,47,340 and Rs. 21,28,290 with share brokers A.K. Investment and Bhagyalaxmi Fiscal (India) (P) Ltd., respectively represent short- term capital loss which is allowed to be set off against short-term capital gains on sale of flat, without appreciating that no physical/actual delivery of shares was either taken by assessee or by his share brokers and transactions were squared off by paying difference which clearly establishes that transactions were in nature of speculative transactions within meaning of s. 43(5) and, therefore, AO rightly treated loss arising out of above transaction amounting to Rs. 43,75,630 as speculation loss. (2) On facts and circumstances of case and in law, learned CIT(A) erred in holding loss of Rs. 43,75,630 as short-term capital loss which is allowed to be set off against short-term capital gains on sale of flat without appreciating that no physical/actual delivery of shares was either taken by assessee or by his share brokers and transactions were squared off by paying difference whereas Rajasthan High Court has in case of CIT vs. Ganesh Das Ram Swaroop Kakani (1990) 82 CTR (Raj) 172: (1990) 181 ITR 93 (Raj), held that contract settled without giving actual delivery of goods is speculative transaction and loss arising out of it is speculation loss within meaning of s. 43(5), and therefore, AO rightly treated loss arising out above transactions amounting to Rs. 43,75,630 as speculation loss. Briefly stated, facts are that out of total short-term capital loss of Rs. 50,24,971, loss of Rs. 22,47,340 was incurred by assessee in respect of share transactions in different scrips done through broker A.K. Investments and loss of Rs. 21,28,290 have been incurred in respect of share transactions in different scrips done from broker Bhagyalaxmi Fiscal (India) (P) Ltd. It was noticed by AO that no payment was made to these brokers against purchase and only net difference between sales and purchase price was settled at end of year. AO issued summons under s. 131 to these persons and both of them confirmed that they had transacted on behalf of assessee in shares and securities. They also confirmed that none of transactions put through them involved physical delivery of said scrips either to them or to assessee and that all these transactions had been settled during year under consideration by assessee by paying difference between purchase price and sale price after said scrips have been sold to others. Based on these facts, AO concluded that loss incurred in these transactions is speculative in nature in view of s. 43(5). Based on this finding, AO reached conclusion that short-term capital loss on account of share transactions with M/s A.K. Investments amounting to Rs. 22,47,340 and that of M/s Bhagyalaxmi Fiscal (India) (P) Ltd. amounting to Rs. 21,28,290 represent speculative loss and therefore be did not allowed to be set off against short-term capital gain on sale of flat. It is held by AO that this loss would only be allowed to be carried forward to be set off against any speculation loss in any subsequent years. Being aggrieved, assessee carried matter in appeal before learned CIT(A) and it is submitted by learned CIT(A) that assessee has contracted SEBI for purchase of shares. It is also submitted that shares falls within group as well as B scrips. assessee did not have funds to take delivery and had defaulted which amounts to breach of trust. sub-broker sold shares which were contracted by assessee and loss has been incurred by assessee. It was also submitted by assessee has not squared off transaction before settlement and therefore, said transactions have resulted in short-term capital loss and not speculative loss. Copies of statements recorded by AO during course of assessment proceedings on which AO has relied were also filed before learned CIT(A) during appellate proceedings. Learned CIT(A) has decided issue in favour of assessee on basis that s. 73(1) prohibits set-off of losses from speculation business against any other profit except profits from speculation business. term speculation business is defined in Expln. (2) to s. 28 and AO has not brought on record any further evidence to show that these speculative transactions entered into by assessee were of nature to constitute speculative business. It is held by learned CIT(A) that in absence of any such evidence, he held that conclusion drawn by AO that said losses represent speculative loss and could not allowed to be set-off against short-term capital gain on sale of flat in accordance with provisions of s. 73(1) is held to be erroneous. He directed AO that amount of Rs. 43,75,630 is held to be short-term capital loss to be allowed to be set off against short-term capital gain on sale of flat. Now, Revenue is in appeal before us. Learned Departmental Representative of Revenue supported assessment order. Our attention was drawn to para No. 3 on page No. 2 of assessment order. It is also submitted by him that it is submitted by M/s A.K. Investments in letter dt. 9th Jan., 2001 that no physical delivery was given to assessee as no payment was received from assessee towards purchase of shares. It is also submitted that M/s Bhagyalaxmi Fiscal (India) (P) Ltd. has also submitted vide letter dt. 4th Jan., 2001 that as per their records, there is no delivery given to assessee as transactions were squared up; and no delivery (physically) was given and received from assessee. It is also submitted by learned Departmental Representative of Revenue that it is noted by AO on page No. 12 of assessment order that there is book closure date between purchase date and sale date and dividend declare by assessee of concerned companies on book closure date; and hence, even if there is delivery with blank shares transfer deed, same transfer deed is valid for delivery in market after date of book closure and hence, in present case, this is admitted position that there was no delivery and, therefore, AO has rightly treated loss as speculation loss. Reliance was placed on judgment of Hon ble jurisdictional High Court rendered in case of Madanlal Nemani (P) Ltd. vs. CIT (1976) 105 ITR 244 (Bom). As against this, learned Authorised Representative of assessee supported order of learned CIT(A). It is submitted by him that right of assessee is created in shares on purchase and hence, even if no delivery is taken and such right in shares is sold, it amounts to transfer of capital asset and any profit/loss of such transfer is to be assessed under head Capital gains . It is also submitted that shares were not sold during same settlement period and in this regard, our attention was drawn to page No. 26 of paper book as per which, M/s A.K. Investments sold 6,700 shares of Escorts Ltd. on 24th Feb., 1998 and it is mentioned in bill that statement period is from 23rd Feb., 1998 to 1st March, 1998. It is submitted that these shares were purchased by assessee on 23rd Oct., 1997 and purchase bills is appearing on page No. 27 of paper book; as per which, statement period is from 20th Oct., 1997 to 27th Oct., 1997. It is submitted that similarly all shares were sold much after date of purchase and no share was sold in same settlement period. It is submitted that s. 43(5) of IT Act can be invoked, if assessee is engaged in business of purchase and sale of shares. It is submitted that in present case, nothing is brought on record by AO that assessee is engaged in business of dealing in shares and it can be seen that assessee is earning income from salary, house property and capital gains and other sources only; and hence, s. 43(5) is not applicable in present case. Regarding judgment of Hon ble jurisdictional High Court rendered in case of Madanlal Nemani (P) Ltd. (supra), it is submitted that in that case, facts are different; and hence, this judgment is not applicable in present case. It is submitted that in that case, assessee was engaged in business and business of assessee was go act as selling agent to textile mill. It is also noted by Hon ble High Court that assessee was also carrying on speculation business in cotton and several other commodities. It was submitted that since assessee is not carrying on business activity, s. 43(5) is not applicable and this judgment of Hon ble Bombay High Court, is also not applicable. Reliance was placed on judgment of Hon ble Bombay High Court rendered in case of CIT vs. Tata Services Ltd. (1979) 13 CTR (Bom) 227: (1980) 122 ITR 594 (Bom). We have considered rival submissions, perused materials on record and have gone through orders of authorities below and judgments cited by both sides. In present case, this is not disputed by assessee that there was no delivery of shares purchased by him and subsequently sold by him. Under this factual position, we have to decide as to whether loss incurred by assessee on such purchase and sale of shares without delivery, is loss incurred in speculation business loss or is short-term capital loss. We find that Expln. (2) to s. 28 is relevant in present case, which reads as under: "Explanation 2 to s. 28. Where speculative transactions carried on by assessee are of such nature as to constitute business, business (hereinafter referred to as speculation business ) shall be deemed to be distinct and separate from any other business." Provisions of s. 43(5) are also relevant because AO has invoked provisions of s. 43(5). Provisions of s. 43(5) reads as under: " Speculative transaction means transaction in which contract for purchase or sale of any commodity, including stocks and shares, is periodically or ultimately settled otherwise than by actual delivery or transfer of commodity or scrips." Both these sections are under part D of Chapter IV, which deals regarding profits and gains of business or profession. Computation of capital gains is in part E of Chapter IV. Learned CIT(A) has decided this issue on basis that AO has not brought on record any further evidence to show that this speculative transaction, i.e., purchase and sales of shares without delivery entered into by assessee were of nature to construed as speculative business. Balance sheet of assessee is appearing on page No. 19 of paper book and in same, we find that assessee is holding investment in shares to extent of Rs. 63.31 lakhs. Nothing is brought on record by AO that assessee was engaged in business of dealing in shares either in this year or in any earlier years. Under these facts, we are in agreement with learned Authorised Representative of assessee that judgment of Hon ble Bombay High Court rendered in case of Madanlal Nemani (P) Ltd. (supra) relied upon by learned Departmental Representative of Revenue is not applicable in present case because facts are different. In that case, admittedly, assessee was engaged in business and transactions were completed without actual delivery. In absence of any finding and also in absence of any material on record to show that assessee was engaged in business of dealing in shares, this judgment is not applicable in present case, judgment of Hon ble Bombay High Court rendered in case of Tata Services Ltd. (supra) supports case of assessee. In that case, it was held that capital asset means property of any kind held by assessee, whether or not connected with his business or profession. This was so held on basis of definition of capital asset , in s. 2(14) of IT Act. It was held in that case, for right to obtain conveyance of immovable property is clearly property as contemplated by s. 2(14) of IT Act. As per s. 45, any profits or gains arising from transfer of capital asset is taxable under head "Capital gains". Now, we have to see as to whether there was any transfer of capital asset in present case. As held by Hon ble Bombay High Court in case of Tata Services Ltd. (supra), assessee acquires right in shares purchased by him although no delivery was taken by him because he could not make payment. Such rights of assessee in those shares have been transferred by t h e assessee on sale. There is nothing on record that assessee was engaged in business of dealing in shares; and hence, these shares were not stock in trade of assessee; and therefore in our considered opinion right of assessee in shares purchased by him was capital asset, which was transferred by him on sale and loss arisen on such transfer i.e. on sale of shares, loss is to be assessed as short-term capital loss. Such loss is not hit by provisions of s. 43(5); unless, it is established that assessee was engaged in business of dealing in shares; because in that case, shares purchased by assessee would amount to stock in trade of assessee although not in possession of assessee because assessee could not take delivery due to non-payment. In that situation, as per s. 2(14), it will not amount to capital asset because stock in trade is excluded from definition of capital asset . In light of these facts, we are of considered opinion that no interference is called for in order of learned CIT(A) on this issue and hence, we uphold same. Both these grounds of Revenue are rejected. Ground No. 3 of appeal reads as under: Ground No. 3 of appeal reads as under: "On facts and circumstances of case and in law, learned CIT(A) erred in directing AO to treat loss of Rs. 6,45,107 arising out of sale of 5,000 shares of Lakme Industries Ltd. as short-term capital loss and to allow set- off of same against capital gains on sale of flat in contravention of provisions of r. 46A of IT Rules by way of entertaining additional evidence in form of details of contract notes in respect of purchase and sales which were never furnished before AO as is apparent from assessment order." Briefly stated, facts are that it is noted by AO that assessee has put through purchase and sale of shares of Lakme Industries Ltd. through M/s N.H. Securities Ltd., broker. assessee claimed to have purchased shares on 12th Feb., 1998 for consideration of Rs. 14,14,000 through M/s N.H. Securities (P) Ltd. and sold same on 26th Feb., 1998 through same broker for consideration of Rs. 7,68,873. It is also noted by AO that out of purchase consideration of Rs. 14.14 lakhs, assessee has paid Rs. 4.25 lakhs on 4th March, 1998 and Rs. 7 lakhs on 5th March, 1998 totalling Rs. 11.25 lakhs to M/s N.S. Securities (P) Ltd. towards purchase of Lakme Industries Ltd. shares as against total purchase consideration of Rs. 14.14 lakhs leaving balance of Rs. 2.89 lakhs. It is also noted by AO that M/s N.S. Securities (P) Ltd. made full payment of Rs. 7,68,873.28 on 17th March, 1998 to assessee without deducting of Rs. 2.89 lakhs, which was due to him from assessee. This sum o f Rs. 2.89 lakhs was paid by assessee to M/s N.S. Securities (P) Ltd. on 19th March, 1998. It is also observed by AO that claim of assessee is that he purchased Lakme Industries Ltd. shares on 12th Feb., 1998 vide bill No. 0/47/12/0001 of M/s N.S. Securities (P) Ltd., but on that date, M/s N.S. Securities (P) Ltd. was not having stock of 5,000 Lakme Industries Ltd. shares and it is noted by AO that in fact, M/s N.S. Securities (P) Ltd. purchased these shares only on 13th Feb., 1998. AO came to conclusion that this is case of purchase of loss by assessee from M/s N.S. Securities (P) Ltd. and M/s N.S. Securities (P) Ltd. appears to have accommodated assessee by issue of bills. AO came to this conclusion for reason that in spite of request, M/s N.S. Securities (P) Ltd. could not produce Saudabahi; wherein M/s N.S. Securities (P) Ltd. could record order for purchase of Lakme shares for assessee. By making these observations, AO held that this loss of Rs. 6,45,107 incurred by assessee is not genuine loss and he treated this transaction as sham transaction. assessee carried matter in appeal before learned CIT(A) and before learned CIT(A), assessee filed copy of accounts of M/s N.S. Securities (P) Ltd. in ledger of assessee as well as on contract notes in respect of said purchase and sale were also filed. Learned CIT(A) has decided this issue in favour of assessee and he directed AO to allow set-off of this loss of Rs. 6,45,107 as against capital loss on sale of flat. Now, Revenue is in appeal before us. Learned Departmental Representative of Revenue supported assessment order. Whereas, learned Authorised Representative of assessee supported order of learned CIT(A). We have considered rival submissions, perused materials on record and have gone through orders of authorities below. We find that three reasons are given by AO for treating this transaction as sham transaction. First reason given by AO is that M/s N.S. Securities (P) Ltd. has shown that it purchased said shares only on 13th Feb., 1998, i.e., after date of purchase by assessee company, which was 12th Feb., 1998. Second reason given by AO is that purchase consideration was paid by assessee after receipt of sale proceeds. third reason given by AO that M/s N.S. Securities (P) Ltd. could not produce Saudabahi before him. We are of considered opinion that none of these reasons can be basis for treating this transaction as sham transaction. Learned CIT(A) has decided this issue after examining all facts in proper prospective as per para Nos. 4.3 and 4.4 of his order, which reads as under: "4.3 It can be seen that these two facts can in themselves certainly not negate transaction wherein all other facts have been found to be in favour of appellant. AO has himself recorded and agreed with fact that on date of sale of these shares by appellant, same were in its possession and same have been sold by appellant on 26th Feb., 1998. shares in question are quoted shares and purchase price as well as sale price is also verified and found correct on date of purchase and sale. What is relevant is whether on dates of settlement, broker M/s N.S. Securities (P) Ltd. had these shares or not. It is not relevant whether they were physically in its stock or not on is date of purchase. Since, appellant has brought on record facts which AO has not disputed to show that 5,000 shares of M/s Lakme Industries Ltd. were purchased on 12th Feb., 1998 for Rs. 14,14,000 and sold on 26th Feb., 1998 for Rs. 7,68,872, said loss of Rs. 6,45,107 is treated as genuine. AO is directed to allow set-off of same against capital gains on sale of flat. This ground of appeal, is therefore, allowed." Learned CIT(A) has decided this issue after considering two objections of AO, i.e., that shares were purchased by M/s N.S. Securities (P) Ltd. on 13th Feb., 1998 after date of purchase by assessee company, i.e., on 12th Feb., 1998 and also that part of purchase consideration was paid by assessee after receipt of sale consideration. Learned CIT(A) has given categorical finding that shares in question are quoted shares and purchase price as well as sale price is also verified and found correct on date of purchase and sale. Under these facts, we are of considered opinion that there is no reason to interfere in order of learned CIT(A) because AO has not doubted factum of purchase of shares by assessee and sale of shares by assessee. Purchase price and sale price is also not doubted and noting is brought on record to show that these prices are not correct. Payment is also made by assessee towards purchase consideration to extent of Rs. 11.25 lakhs out of total purchase consideration of Rs. 14.14 lakhs. Balance amount of Rs. 2.89 lakhs is also paid by assessee to M/s N.S. Securities (P) Ltd. on 19th March, 1998. M/s N.S. Securities (P) Ltd. has also made payment of Rs. 7.68 lakhs to assessee on 17th March, 1998. In view of these facts, we Rs. 7.68 lakhs to assessee on 17th March, 1998. In view of these facts, we find no reason to interfere in order of learned CIT(A) on this issue and hence, we uphold same. This ground of Revenue stands rejected. Ground No. 4 of appeal reads as under: "On facts and circumstances of case and in law, learned CIT(A) erred in directing AO to treat loss of Rs. 53,98,531 arising out of sale of shares of Lloyds Steel Industries Ltd., by assessee to his wife, Mrs. Renuka Gupta, as long-term capital loss and to allow set-off of same against short-term capital gain on sale of flat, holding that shares of Lloyds Steel Industries Ltd. along with certificate No. and transfer Nos. were actually transferred to Smt. Renu R. Gupta in contravention of provisions of r. 46A of IT Rules by way of entertaining additional evidence in form of details of investment in shares of Renu R. Gupta as on 31st March, 1998 as well as letter dt. 16th March, 1998 from Registrar and Transfer Agents, M/s Lloyds Capital Services Ltd., as evidence to show that said shares along with certificate numbers and transfer numbers were actually transferred to Smt. Renu R. Gupta which were never furnished before AO as is apparent from assessment order." Briefly stated, facts are that assessee claimed to have sold 55,000 shares of M/s Lloyd Steel Industries Ltd. on 4th March, 1998 to his wife Smt. Renuka Gupta for total sale consideration of Rs. 1.76 lakhs. On this basis, he claimed long-term capital loss of Rs. 53,98,531. It is observed by AO that these shares of M/s Lloyd Steel Industries Ltd. were never transferred in name of Smt. Renuka Gupta. AO has drawn this conclusion on basis of statement given by M/s Lloyds Capital Services Ltd. under s. 131; wherein it is stated that as per their record since 1st April, 1998 till date of statement under s.. 131, no shares of M/s Lloyd Steel Industries Ltd. are transferred from folio of Mr. Rajesh R. Gupta. AO has also observed that money for sale of these shares was not received by assessee and this transaction was not put through any broker. For these reasons, AO invoked decision of Hon ble apex Court rendered in case of McDowell & Co. Ltd. vs. CTO (1985) 47 CTR (SC) 126: (1985) 154 ITR 148 (SC) and disallowed claim of assessee regarding set-off of this long-term capital loss against short-term capital gain on sale of flat. assessee carried matter in appeal before learned CIT(A) and before him, assessee has filed copy of ledger account of Smt. Renuka Gupta in books of assessee for period 1st April, 1997 to 31st March, 1999 as well as for next year. assessee also filed copy of statement of affairs, profit and loss account and capital accounts of Smt. Renuka Gupta for year ended 31st March, 1998 along with details of investment in shares as on 31st March, 1998 as well as letters from M/s Lloyds Capital Services Ltd. Registrar and share transfer agent dt. 16th March, 1998 as evidence to show that said 55,000 shares were actually transferred to Smt. Renuka Gupta. It was submitted before learned CIT(A) that this is fact that Smt. Renuka Gupta has not actually paid consideration for purchase of these shares; but in running account of Smt. Renuka Gupta with assessee, assessee has debited this amount to her account. It is also submitted before learned CIT(A) that shares of M/s Lloyd Steel Industries Ltd. was being quoted at Rs. 3.20 per share on Bombay Stock Exchange on date of sale. It is also submitted before learned CIT(A) that said shares have been registered in name of Smt. Renuka Gupta on 16th March, 1998. It was also submitted that AO enquired from M/s Lloyds Capital Services Ltd. regarding share transfer after 1st April, 1998 and since, impugned shares were duly transferred on 16th March, 1998, it is stated by M/s Lloyds Capital Services Ltd. that there is no share transfer from account of assessee after 1st Feb., 1998. Learned CIT(A) decided this issue in favour of assessee and now Revenue is in appeal before us. Learned Departmental Representative of Revenue supported assessment order. Whereas, learned Authorised Representative of assessee supported order of learned CIT(A). Our attention was drawn to page Nos. 93 to 95 of paper book, which contain debit note issued by assessee to Smt. Renuka Gupta for sale of 55,000 equity shares of M/s Lloyd Steel Industries Ltd. on 4th March, 1998 @ of Rs. 3.20 per share. Our attention was drawn to page No. 95 of paper book, which contains paper cutting of Newspaper of "Business Standard" of 5th March, 1998, which contains price of shares quoted in Bombay Stock Exchange on 4th March, 1998. It is submitted that price of shares of M/s Lloyd Steel Industries Ltd. was moving within range of Rs. 3.10 shares of M/s Lloyd Steel Industries Ltd. was moving within range of Rs. 3.10 per share to Rs. 3.40 per share under closing stock price on that date was Rs. 3.20 per share; and hence, price at which, shares are sold by assessee to his wife is as per market quotatio n on that day. Our attention was drawn to page No. 100 of paper book, which contain details of investment in shares as on 31st March, 1998 of Smt. Renuka Gupta and it is submitted that as per these details, Smt. Renuka Gupta is holding 89,000 shares of M/s Lloyds Steel Industries Limited. Our attention was drawn to page No. 101 of paper book, which contains details of shares purchased during year by Smt. Renuka Gupta and as per same, 55,000 shares were purchased by her from assessee and 14,000 shares were purchased by her from Shri R.N. Gupta and there was opening balance of 20,000 shares of this company, which totals to 89,000 shares held by her on 31st March, 1998. It is also submitted that page Nos. 102 to 120 contains letter of M/s Lloyds Capital Services Ltd., as per which these shares were transferred in name of Smt. Renuka Gupta. It is submitted that page No. 120 of paper book contains total number of shares transferred from assessee to Smt. Renuka Gupta is stated to be 55,000 shares and this letter is dt. 16th March, 1998. We have considered rival submissions, perused materials on record and have gone through orders of authorities below. We find that much stress is laid down by AO on this aspect that these impugned shares were not transferred in name of Smt. Renuka Gupta. This is not correct because we find that as per this letter dt. 16th March, 1998 issued by M/s Lloyds Capital Services Ltd., 55,000 shares were of M/s Lloyd Steel Industries Ltd. were transferred in name of Smt. Renuka Gupta on 16th March, 1998. Regarding reply of M/s Lloyds Capital Services Ltd. as per letter dt. 6th Dec., 2000, is reproduced by AO in para No. 5.2 of his order, and as per same, it is stated by M/s Lloyds Capital Services Ltd. that as per their records, since 1st April, 1998 till 6th Dec., 2000, no shares of M/s Lloyd Steel Industries Ltd. was transferred from folio of Shri Rajesh R. Gupta i.e. assessee. From this reply of M/s Lloyds Capital Services Ltd., AO came to conclusion that impugned shares claimed to have been sold by assessee to Smt. Renuka Gupta is not transferred to her name even upto 29th Dec., 2000. But, this conclusion of AO is not correct because impugned shares were transferred in name of Smt. Renuka Gupta on 16th March, 1998 and since, in reply dt. 6th Dec., 2000, shares transferred agent M/s Lloyds Capital Services Ltd. has given possession of shares transferred from 1st April, 1998 onwards, inference drawn by AO is not correct. There is no dispute regarding fact that these shares are held by assessee as investment. sale price at which, shares are said to be sold by assessee to his wife as per market quotation on date of sale and under these facts, we are of considered opinion that no interference is called for in order of learned CIT(A) on this issue. Regarding objection of Revenue that learned CIT(A) has admitted additional evidence regarding transfer of impugned shares in name of Smt. Renuka Gupta being letter dt. 16th March, 1998 of M/s Lloyds Capital Services Ltd., we find that on basis of reply of M/s Lloyds Capital Services Ltd. being letter dt. 6th Dec., 2000, AO has decide issue against assessee by interfering that impugned shares were not transferred in name of Smt. Renuka Gupta without giving opportunity to assessee to show that these shares were transferred or not; under these facts, learned CIT(A) was justified in accepting this letter dt. 16th March, 1998 issued by M/s Lloyds Capital Services Ltd. evidencing that impugned shares were duly transferred to Smt. Renuka Gupta on 16th March, 1998. In this regard, we find that clause Nos. (c) and (d) of r. 46A(1) are relevant, which read as under: "(c) where appellant was prevented by sufficient cause from producing before AO any evidence which is relevant to any ground of appeal; or (d) where AO has made order appealed against without giving sufficient opportunity to appellant to adduce evidence relevant to any ground of appeal." In facts of this case, we are of considered opinion since AO has not given opportunity to assessee before drawing adverse inference from letter dt. 6th Dec., 2000 of M/s Lloyds Capital Services Ltd., admission of additional evidence by learned CIT(A) is as per this exceptions in r. 46A. On this account also i.e. regarding admission of additional evidence by learned CIT(A), we find no infirmity in order of learned CIT(A); and hence, we uphold same. This ground of Revenue is also rejected. In result, this appeal of Revenue stands dismissed. *** DEPUTY COMMISSIONER OF INCOME TAX v. RAJESH R. GUPTA