TMI Blog2014 (1) TMI 1489X X X X Extracts X X X X X X X X Extracts X X X X ..... de any attempt to explain before the Commissioner of Income Tax (Appeals) suggesting not to accept the same - Instead of retracting the assessee called upon to act upon the same to pass assessment order and accordingly it was done and the tax was duly paid - The learned Tribunal has taken a correct decision that the same is without any factual basis and further unsupported by law - When a case is not made out before the Commissioner, the assesee should not have made out so to say his own case basing on a lawyer's argument - A lawyer cannot improve the case of the litigant on fact unlike in case of law - Such an act is without jurisdiction - Decided against assessee. - I.T.T.A. No. 77 of 2007 - - - Dated:- 2-1-2014 - CJ Sri Kalyan Jyoti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.20 lakhs solely basing itself on the statement recorded by the assessing officer under Section 133A of the Income Tax Act from the Managing Director of the appellant company, which statement cannot be put on par with a sworn statement under Section 133 (1) or 133 (4) of the Income Tax Act 5.6. Whether the canons of natural justice are not violated as no show cause notice was issued by the assessing officer and the list of the defective vouchers was not furnished and not even a copy of the statement recorded from the Managing Director was furnished to the appellant company before the assessment has been completed 5.7. Whether the Hon'ble ITAT was justified in sustaining the addition when the Central Board of Direct Taxes itself in its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly offer Rs.20.00 lakhs as additional income in respect of training and development divisions of the company and EOU division of the company. The lapses being common to both the divisions, i.e., training and development and EOU, I offer Rs.10.00 lakhs for each of the division. This offer has been made voluntarily to close the matter. This does not cover any disallowance on any legal issue. I would request the department not to initiate any penalty proceedings. I undertake that the company pay the taxes after it receives the assessment order." The fact shows that at the time of assessment the assessee did not retract the aforesaid admission making voluntary disclosure. Even the assessee on the basis of the assessment has paid the tax and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made on the basis of admission, the same has to be deleted on the basis of retraction." We fail to understand from where the case of retraction has been discovered by the Commissioner of Income Tax (Appeals) when the appellant has not stated in the grounds of appeal before it that it has retracted. Notwithstanding above, the learned counsel before us very strenuously argues that there has been retraction of admission before the Commissioner of Income Tax (Appeals) and the Commissioner has taken into consideration of the same. Therefore, the learned Tribunal should not have set aside the order of the Commissioner, but at the most it should have remanded the matter. According to him, the Commissioner of Income Tax (Appeals) has extensive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercise of power evaluating legal implication of admission was not called for because no case was made out factually. Therefore, the decisions cited by the learned counsel for the appellant before us are absolutely inappropriate. Hence, we ignore all these decisions. The learned Tribunal has taken a correct decision and we are constrained to comment on the decision taken by the Commissioner of Income Tax (Appeals), even basing on his own recording that the same is without any factual basis and further unsupported by law. When a case is not made out before the Commissioner, he should not have made out so to say his own case basing on a lawyer's argument. A lawyer cannot improve the case of the litigant on fact unlike in case of law. Such a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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