TMI Blog2014 (1) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... in admitting fresh evidence cannot be faulted with – The rules further require that opportunity to rebut the fresh evidences by evidence, document etc by way of a remand report should have been provided to the AO which admittedly has not been done by the CIT(A) who has instead restored the issue to the AO which he was not empowered to do so as section 251(1)(a) does not empower the CIT(A) to restore the issue to the AO as he can only confirm, reduce, enhance or annul the assessment - In the circumstances holding that the fresh evidence admitted was necessary and crucial for determining the issue as the AO has not proceeded on a sound footing by straightaway making the addition on the ground that Form No-16 was not available which he could have easily called for in the course of the assessment proceedings – Grounds of the Revenue are allowed whereas the ground of assessee has been restored for fresh adjudication. - I.T.A .No.-4385/Del/2011, I.T.A .No.-4531/Del/2011 - - - Dated:- 28-10-2013 - Smt. Diva Singh And Shri J. S. Reddy,JJ. For the Appellant : Sh. Rakesh Nanda, CA For the Respondent : Sh. Vivek Kumar, Sr. DR ORDER Per Diva Singh, JM These are cross appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances of the case and in law the learned CIT(A) has erred in deleting the addition of Rs.59,18,524/- made by the A.O. towards undeclared commissions." 2. "On the facts and in the circumstances of the case and in law the learned CIT(A) has erred in setting aside the issue to the A.O. for fresh adjudication as he has no power to set aside the assessment under the Income Tax Act." 3. "On the facts and in the circumstances of the case and in law the learned CIT(A) has erred in accepting the reconciliation statement and other document which was not filed before the AO during the course of assessment proceedings by calling for admitting additional evidence in contravention of Rule 46A of the I.T. Rules which provides for confrontation of the same to the AO mandatory." 4. "The appellant craves leave for reserving the right to amend, modify, alter, add or forego any ground(s) of appeal at any time before or during the hearing of appeal." 3. The Ld. AR addressing the grounds of appeal raised stated that only one issue has been agitated vide Ground No. 1 to 7. The relevant facts qua the first issue addressed by the assessee vide Ground No-1 to 7 it is seen is found discussed at pag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in appeal before the ITAT. 3.2. Ld. AR inviting attention to page 5 and page 6 of the paper book emphasizing the highlighted portion submitted that the overdraft account of the assessee for tyre business would show that it turned positive after 30.07.2007 and after 16.08.2007 the assessee has received business income and the investment in mutual funds has been made thereafter from the surplus funds available. It was his submission that none of these arguments and facts advanced before the CIT(A) and the AO have been considered. Reliance was placed upon ACIT vs Mohan Exports (P.) Ltd. and Maxopp Investment Ltd. vs CIT so as to contend that the disallowance was not warranted on facts. Ld. Sr. DR relied upon the impugned order. However on the specific arguments advanced on behalf of the assessee namely the written submissions before the CIT(A) which has been reproduced in the impugned order itself which admittedly was not considered by the CIT(A) submitted that in the circumstances he would have no objection if the issue is restored to the file of the AO to be considered in the light of the decision of the Delhi High Court in Maxopp Investment Ltd. 247 CTR 162 (Delhi). 4. We hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learly revealed from the narrations of the bank entries submitted by the assessee for this bank account. By making reverse computation over this amount, the gross amount of commission is worked out at Rs.59,18,524/-. Since, the assessee has not disclosed this amount as income in his return of income, the addition of Rs.59,18,524/- is made to the income of the assessee under the business income head. Hence, the addition of Rs.59,18,524/- is being made." 6. The submissions advanced on behalf of the assessee are also found reproduced in para 10 which read as under :- "10. The AR filed detailed written submissions in this regard which are as under :- "a. The assessee is a Director in Tip Top General Agencies Pvt. Ltd. and received salary including commission. During the previous year he received Rs.5796602/- towards commission (Gross Rs. 87,81,400/- TDS @ 33.99% Rs.2,984,798/-) on 31.10.2007 which was credited in his saving account on 08.11.2007 with Societe Generale Bank. b. It has been alleged in the Assessment Order that Rs.57,96,602/- were received after deduction of TDS @ 2.06% and it has also been alleged that said sum is not included in the returned income and an additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erale Bank. It appears, prima facie, the commission is properly reflected. In view of the above discussion, the AO is hereby directed to verify the reconciliation statement and other documents which are brought on record for the first time and if he is satisfied with the genuineness of the documents and explanation, no addition is called for. The issue is set aside for limited verification only. Accordingly, Ground Nos.5 and 6 are allowed in principle." 6.2. The department has agitated by Ground No- 2 that the CIT(A) does not have the power to set aside the issue to the AO and by Ground No-3 it is agitated that he has erred in entertaining fresh evidence which required the same to be confronted to the AO as per Rule 46A (3) of the Income Tax Rules 1962. 7. We have heard the parties before the Bench qua the grounds raised. Before we proceed to decide the same we hold that the Ground No-2 of the department deserves to be upheld. A perusal of section 251(1)(a) shows that the Commissioner (Appeal) has been empowered by the Statute to either confirm, reduce, enhance or annul the assessment. The power to set aside has been omitted by the Finance Act, 2001 w.e.f 01.06.2001. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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