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TMI Blog2012 (9) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... 003-04) and the assessment order has been passed after prior approval of the Joint Commissioner of Income tax. 4. That the impugned remand order cannot be treated as notice u/s 251(2) of the Act." 2. During hearing of these appeals, we have heard Shri Prakash Jain, ld. Counsel for the assessee and Shri Darshan Singh, learned CIT DR. The crux of arguments on behalf of the assessee is that search and seizure operation u/s 132 of the Act was carried out at the residential premises of Shri Subhash Chandra Gupta, Shri Rajendra Prasad Gupta and the search warrants were issued/executed in the name of Shri Subhash Chandra Gupta and Shri Rajendra Prasad Gupta, whereas no search warrant was issued in the name of Smt. Vandana Gupta. It was pointed out that in the remand report, the learned Assessing Officer himself has admitted that no such warrant was executed upon Smt. Vandana Gupta for which our attention was invited to the copy of the remand report, filed in the paper book. Mr. Jain further pointed out that identical ground was raised before the learned CIT(A) who without deciding the said ground (in the case of Smt. Vandana Gupta), passed order u/s 250(4) of the Act identical to Shri S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate authority has not appreciated the settled principle of law i.e. the things which cannot be done directly also cannot be done indirectly" for which reliance was placed in CIT v. Kelvinator of India Limited; 256 ITR 1 (page 15), Ram Jethmalani & Others v. Union of India. It was prayed that the impugned order passed u/s 250(4) of the Act should be quashed. 2.1 On the other hand, the learned CIT DR, Shri Darshan Singh, defended the impugned order by submitting that the learned CIT(A) has wide powers and is empowered to pass any order under the facts and circumstances available on record and also having co-terminus powers as that of the Assessing Officer. It was further pleaded that the modus operandi of the assessee and its group cases was to earn unexplained money on which assessment order is silent. It was also pointed out that there was some land situated at Dewas for residential-cum-commercial purposes, which was purchased by the company and this fact was aired by IBN-7 channel alleging that some political persons favoured the assessee group. It was pleaded that some unexplained money was possessed by this group. It was also asserted pursuant to search at the residence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al stands. Regarding the query on cash, jewellery, silver utensils and stock, found during search, it was claimed that the gold jewellery of the respective family members was disclosed in their respective wealth tax returns for which our attention was invited to pages 73 to 80 of the paper book. Therefore, no addition was made in the hands of the present assessees while framing the assessment u/s 143(3) read with section 153A of the Act. On the issue of bogus share capital and sale outside the books of accounts, suppression of turnover, etc., it was explained by the ld. Counsel for the assessee that no demand was pending as on date from Kolkatta based companies like MAPLE International, Bridham Suppliers Limited; Gravity Marketing; Pepsicon Traders and Transpower Traders, etc. Our attention was invited to pages 88 to 220 and 221 to 515 evidencing filing of returns under the Companies Act. So far as the development of land situated at Dewas for residential-cum-commercial purposes, payment for land conversion, expenditure for development and the alleged profit not disclosed on the sale of plots, it was explained that the land was purchased by M/s Sam Industries Limited, Indore, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cancelled which was evident from the statement of Shri Mahendra Jain recorded during the assessment proceedings for which our attention was drawn to pages 621 to 625 of the paper book and for the statement of Shri Mahendra Jain to pages 626 to 629 of the paper book. Regarding unexplained investment and payment for purchase of land at Bhopal, it was claimed that no property was purchased by Shri S.C. Gupta along with Shri Maheshwari and Shri Om Agrawal which can be verified from the office of Sub-Registrar, Bhopal. For purchase of plots by Shri Subhash Gupta in Royal Estates and formation of Jan Hit Grah Nirman Cooperative Housing Society, it was claimed that the assessee neither invested any money nor developed any colony along with Shri Ramesh Gangwal, Shri Maheshwari and Shri Subhash Jain is having no relation with the Sahkari Society. Our attention was invited to pages 645 to 674 of the paper book. For activities of Fenny Cooperative Housing Society, our attention was invited to pages 621 to 625 and statement at pages 626 to 629. So far as long term capital gains by Gupta families with the help of Calcutta based CAs is concerned, it was explained that the Gupta family has not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uming that there were entries in the account books regarding the said sum as contended by the Revenue, still, so long as such sum has not been subjected to the process of assessment by the ITO, the said item cannot be treated as an item to be considered for enhancement by the AAC." Similar view has been expressed by the various High Courts in the following cases :- (i) CIT Vs. Sardarilal & Co, 251 ITR 864 (Del) FB (ii) CIT Vs. Union Tyres 240 ITR 556 (Del.) (iii) CIT Vs. Associated Garments Makers 197 ITR 350 (Rajasthan.) The Hon'ble Delhi High Court in Union Tyres (240 ITR 556), after considering various decisions like CIT vs. Sapoorji Paloonji Mistry (supra) and CIT vs. Rai Bahadur Hardutroy Motilal Chamaria; 66 ITR 443 (SC) as also CIT vs. Kanpur Coal Syndicate; 53 ITR 225 (SC), CIT vs. Nirbhayram Daluram; 224 ITR 610 (SC) and Jute Corporation of India vs. CIT; 187 ITR 688 (SC), held as under :- " Held, that, in the instant case, the Tribunal was justified in holding that in calling for a remand report on four points, namely, antecedents of the assessee, source of investment made in purchase of goods, business connections of the assessee and bank reconciliation statement, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Apex Court like CIT vs. Nirbhayram Daluram;224 ITR 610 (SC), CIT vs. Kanpur Coal Syndicate; 53 ITR 225 (SC), Jute Corporation of India; 187 ITR 688 (SC), along with others, were duly considered. 4.4. From the decisions from Hon'ble Delhi High Court, it becomes crystal clear that the powers of the learned CIT(A) are limited to the subject matter of assessment and not beyond that. It is a settled principle of law that even if there are two views, the view in favour of the assessee has to be preferred. As such, CIT(A) is not permitted to travel beyond the subject matter of assessment. It also becomes clear that it is not only the subject matter of the appeal before him but the subject matter of the assessment. In our opinion, the powers of enhancement vested in the CIT(A) are restricted only to the income which was the subject matter of consideration for the purposes of assessment by the Assessing Officer. 4.5 The various decisions relied upon by the learned CIT(A) are distinguishable and are not directly on the subject. 4.6. In the case before us, what the learned CIT(A) is attempting to do is that under the guise of provisions of section 250(4) of the Act, he is tryin ..... 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