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Income Tax Appellate Tribunal, RANCHI BENCH “E” Court at KOLKATA
Before: Shri S.S.Godara & Dr. A.L. Saini
Shri Devesh Poddar, Advocate अपीलाथ� क� ओर से/By Appellant Shri A.K. Mohanti, Addl. CIT-SR-DR ��यथ� क� ओर से/By Respondent 21-07-2020 सुनवाई क� तार�ख/Date of Hearing 21-07-2020 घोषणा क� तार�ख/Date of Pronouncement आदेश /O R D E R PER BENCH (Oral):- This assessee’s appeal for assessment year 2015-16 arises against the Commissioner of Income Tax (Appeals)-Ranchi’s order dated 07.03.2019 passed in case No. CIT(A), Ranchi/10258/2017-18, involving proceedings u/s 144 r.w.s.143(3) the Income Tax Act, 1961; in short ‘the Act’.
Heard Shri Devesh Poddar and Shri A.K. Mohanti, for the assessee and department; respectively.
It transpires during the course of hearing that the assessee’s sole substantive grievance challenges the CIT(A)’s action making to section Sri Binoy Kr. Singh Vs. ACIT Cir-3, Ran Page 2 56(2)(vii) addition of ₹44.80 lakh in lower appellate order as againt sec. 69 unexplained investment addition of ₹115,12,000/- invoked during the regular assessment in issue. Learned departmental representative fails to dispute the clinching fact that the impugned addition u/s 56(2)(vii) never formed subject- matter of assessee’s grounds in the lower appellate proceedings nor any such issue had arisen in the assessment order. This tribunal’s co-ordinate bench’s decision in Bikram Singh vs.DCIT, Circle-15(1), New Delhi in decided on 13.04.2016 reverses similar addition as under:- “11. We have perused all the records and heard both the counsels, it is pertinent to know that the Assessing Officer has not dealt the reply and the enclosures/documents given on the date of assessment order i.e. 19/11/2011, the same was not testified before the CIT(A). The CIT(A) should have taken cognizance of all those records and the letters. This shows that the CIT (A) has totally ignored this letter along with the enclosures/documents and passed the order accordingly which is not tenable under the law. The appropriate opportunity was not given to the assessee. The A.O has proceeded to compute income of the assessee on the basis of the income as per intimation u/s 143(1) of the Act; whereas the A.O was required to compute the income of the assessee on the basis of income returned. This was a ground raised
before the CIT(A) and is a part of ground of appeals in the present appeal. It being wholly legal ground of the appeal deserves to be adjudicated. The Assessing Officer has acted beyond the jurisdiction by computing income of the assessee on the basis of the income as per Section 143(3) where as the intimation was u/s 143(1). The CIT(A) acted beyond its power by directing the Assessing Officer to tax the capital gains in respect of sale of land at Gurgaon, though, there was no addition made by the Assessing Officer in the assessment order to that respect. Capital gain is an independent and different source of income and was not the subject matter of appeal before him nor was the issue considered by the Assessing Officer by framing an assessment order. Instead, the Assessing Officer termed the same as commission on the sale of land. The Ld. AR has relied on the various case laws more preciously that of Shapoorji Pallonji Mistry Vs. CIT reported in 34. ITR 342 (confirmed by the Apex Court in 44. ITR 891) wherein the Hon’ble Bombay High Court while dealing with the powers of the CIT(A) held that CIT(A) was not empower to enhance an income on an issue which was not the subject matter of the assessment. The ratio laid down in the judgment of full Bench of Delhi High Court in the case of CIT vs. Sardari Lal & Co. reported in 251 ITR 864 is also relevant in assessee’s case that the CIT(A) cannot touch upon an issue which does not arise from Sri Binoy Kr. Singh Vs. ACIT Cir-3, Ran Page 3 the order of the assessment and was outside the scope of the order of the assessment. The order of the CIT(A) does not sustain.” We adopt the above extracted detailed reasoning mutatis mutandis and direct the Assessing Officer to delete the impugned addition.
This assessee’s appeal is allowed. Order pronounced in open court at the close of hearing on Tuesday 21st July, 2020 Sd/- Sd/- (लेखा सद"य) ($या%यक सद"य) (Dr. A.L. Saini) (S.S.Godara) (Accountant Member) (Judicial Member)