2022 (11) TMI 730 - AT - Income Tax
Addition u/s 68 or 69A - Addition representing cash deposits made in the bank account - cash deposits in the bank account as unexplained cash credit under section 68 - Commissioner (Appeals) while deciding the appeal has unilaterally changed the provision to section 69A of the Act while confirming the addition - HELD THAT:- The conditions and situations for applicability of section 68 and section 69A of the Act are different. Therefore, unless the conditions of the specific provision are fulfilled, no addition can be made. In the facts of the present appeal, the first appellate authority has accepted that conditions of section 68 of the Act are not fulfilled. That being the position, he should have deleted the addition. Instead of doing so, he has confirmed the addition under section 69A of the Act without providing an opportunity to the assessee to explain whether the conditions of section 69A are attracted or not.
As per the decision of Aar Pee Apartments (P.) Ltd. [2009 (8) TMI 256 - DELHI HIGH COURT] when the scope and ambit of the two separate provisions are altogether different, the addition cannot be changed to another provision. Following the aforesaid decision of the Hon’ble Jurisdictional High Court, the coordinate bench in the case of Toffee Agricultural farms Pvt. Ltd. [2022 (4) TMI 869 - ITAT DELHI] had expressed the view that the first appellate authority unilaterally has no power to change the section under which the Assessing Officer has assessed an item of income. Thus, respectfully following the ratio laid down in these decisions,hold that the addition made confirmed under section 69A of the Act deserves to be deleted. - Decided in favour of assessee.