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2019 (3) TMI 1117 - AT - Income TaxAssessment u/s 153A - Addition u/s 68 - as argued during the course of search no incriminating material/documents was found regarding the share application money - as per assessee all the necessary documents from the stated investors were filed before the Assessing Officer in order to prove the identity, genuineness and the creditworthiness of the investors - HELD THAT:- No infirmity in the order of the CIT(A) in deleting the addition made by the Assessing Officer in the absence of any incriminating material found during the course of search. Even though the Revenue has filed an appeal, the grounds of which are already reproduced in the preceding paragraphs, however, the Revenue has not challenged the order of the CIT(A) deleting the addition in absence of any incriminating material found during the course of search. Therefore, the order of the CIT(A) is upheld on the legal ground. Since the order of the CIT(A) deleting the addition on legal ground is upheld, therefore, the grounds raised by the Revenue on merit become infructuous being merely academic in nature. - Decided in favour of assessee. Scope of CIT's powers u/s 251(1)(a) - Addition u/s 56(2)(viib)- AO made addition in respect of share capital including share premium u/s 68 - CIT(A) deleted addition related to share capital but hold that share premium is taxable u/s 56(2)(viib) - HELD THAT:- Assessing Officer in the body of the assessment order has neither discussed this issue nor made any addition on this account. Under these circumstances, it has to be seen as to whether the ld.CIT(A) has jurisdiction to make such addition on an issue which was never considered by the Assessing Officer. Considering all AO in the assessment order has neither discussed this issue nor made any addition u/s 56(2)(viib), therefore, respectfully following CIT VERSUS SARDARI LAL & CO [2001 (9) TMI 1130 - DELHI HIGH COURT] and SH. VIKRANT PURI VERSUS ACIT, CENTRAL CIRCLE-13 NEW DELHI [2016 (4) TMI 419 - ITAT DELHI] we are of the considered opinion that the ld.CIT(A) has no power to adjudicate the issue by introducing a new source of income and his order has to be confined to those items of income which is subject matter of original assessment. We accordingly set aside the order of the CIT(A) and direct the Assessing Officer to delete the addition. Although the powers of the CIT(A) are co-terminus with that of the powers of the Assessing Officer, yet, he has jurisdiction only on those items which have been considered by the Assessing Officer irrespective of the fact whether the issue is subject matter of appeal or not. However, in our opinion, he does not have any jurisdiction over an issue which has not been considered by the Assessing Officer. In case it is accepted that the CIT(A) has power to consider an issue which was not considered by the Assessing Officer, then, the provisions of section 263 or 147 will become otiose. - decided in favour of assessee.
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