TMI Blog2018 (11) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... Whether this transaction is independent or same transaction of deposits in bank account. In our view, it is one transaction. The deposits in the bank account which belongs to the company account irrelevant to the assessee but the deposits in the personal account of assessee is relevant for this assessment and the Assessing Officer intended to make addition in her personal bank account and the same was made by the Ld.CIT(A). Therefore, this addition is nothing but coming out of same addition and not independent. - Decided against assessee. - I.T.A. No. 174/HYD/2018 - - - Dated:- 9-11-2018 - SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER For The Assessee : Shri Md. Afzal, AR For The Revenue : Shri D.J.P. Anand, DRa ORDER PER S. RIFAUR RAHMAN, A.M. : This appeal filed by the assessee is directed against the order of the Commissioner of Income Tax (Appeals) 6, Hyderabad, dated 17-11-2017, for the AY. 2009-10. 2. Brief facts of the case are that the assessee filed her return of income for the AY. 2009-10 on 24-03-2010, declaring total income of ₹ 7,61,990/-. The case was taken up for scrutiny and issued no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner as provided u/s. 251 of the IT Act, as the transaction was accepted by the Assessing Officer and therefore, which is not subject matter of appeal before the CIT. 6. The appellant craves leave to add to, amend or modify the above grounds of appeal either before or at the time of hearing of the appeal, if it is considered necessary . 4. Ld.AR submitted that the Assessing Officer found that assessee has made cash deposits in the bank account, which was held by the assessee in the name of the company and Ld.CIT(A) has rightly deleted the same. At the same time, Ld.CIT(A) found new cash deposits in the personal account of the assessee. According to him, these two transactions are independent. Ld.CIT(A) cannot add or enhance anything which is not before him. In that process, he relied on the following case law: i. Hon'ble High Court of Kerala in the case of CIT Vs. Shri B.P. Sherafuddin, Hotel Gazala Inn in ITA No. 881 of 2009; ii. Hon'ble High Court of Delhi in the case of CIT Vs. Union Tyres [240 ITR 556] (Delhi); iii. Hon'ble High Court of Delhi (FB) CIT Vs. Sardarilal Co., [251 ITR 864]; and raised the query that whether it is within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sardari Lal Co. the same issue-whether the appellate authority has the power under section 251 to discover a new source of income-was referred to a Full Bench. After examining, the authorities holding the fielding on that issue, the learned Full Bench has held that the inevitable conclusion is that whenever the question of taxability of income from a new source of income is concerned, which had not been considered by the assessing officer, the jurisdiction to deal with the same in appropriate cases may be dealt with under section 147, or section 148, or even section 263 of the Act if requisite conditions are fulfilled. It is inconceivable, according to Sardari Lal, that in the presence of such specific provisions, a similar power is available to the first appellate authority. Eventually, Sardari Lal upheld the decision in Union Tyres. 51. Undeniably, the precedential position on the powers of the first appellate authority under section 251 undulates. There are seeming contradictions. But, as held by Union Tyres, and as affirmed on reference by Sardari Lal, there is a consistent judicial assertion that the powers under section 251 are, indeed, very wide; but, wide as they ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds of the assessee under a different provision of law and will not have much relevance in the estimation of sales and gross profit rate adopted by the AO. Any addition on account of unexplained investment would constitute a new source of income which was not the subject-matter of assessment before the AO and, therefore, it was not open to the first appellate authority to direct the AO to conduct enquiry on the said four points.-CIT vs. Shapoorji Pallonji Mistry (1962) 44 ITR 891 (SC) : TC 7R.576 and CIT vs. Rai Bahadur Hardutroy Motilal Chamaria (1967) 66 ITR 443 (SC) : TC 7R.590 applied . 6.3. In the case of CIT Vs. Sardarilal Co., [251 ITR 864], the Hon'ble High Court of Delhi (FB) has held as under: The Appellate Assistant Commissioner, on an appeal preferred by the assessed, had jurisdiction to invoke, for the first time, the provisions of rule 33 of the Indian Income Tax Rules, 1922 (hereinafter referred to as 'the Rules'), for the purpose of computing the income of a non-resident even if the Income Tax Officer had not done so in the assessment proceedings. But, in Shapoorji Pallonji Mistry's case [supra), this court, while considering the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority. That being the position, the decision in Union Tyres' case (supra) of this court expresses the correct view and does not need reconsideration. This reference is accordingly disposed of. 7. Considered the rival submissions and material on record. By referring to the above ratios, we respectfully agree with the findings of respective courts that the first appellate authority has wide powers but he cannot make addition on the independent source of income, when the same independent source of income can be brought to tax by the AO by invoking the other provisions of the Act like Sections 147/148 or 263. We carefully analysed the facts before us. Assessing Officer made addition of unexplained cash deposits in the bank account maintained by assessee. But the assessee has two bank accounts, one in the name of company and another in her personal name. Assessing Officer noticed the cash deposits in the account maintained on behalf of the company and failed to notice the cash deposits in the personal account. But according to AR, this was disclosed before the Assessing Officer and Assessing Officer has accepted it after verification. We observe, Assessing Officer has not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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