TMI Blog2016 (3) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicated a new issue which was not even touched upon by the Assessing Officer for making disallowance in the hands of the assessee. Also carefully perused the judgment of CIT vs. Sardari Lal & Co. (2001 (9) TMI 1130 - Delhi High Court ), in which Hon'ble High Court has adjudicated the powers of the ld. CIT(A) conferred under section 251(1)(a) of the Act in the light of various judicial pronouncements of different High Courts and Apex Court and was of the view that whenever question of taxability of income from new source of income is concerned, which has not been considered by the Assessing Officer, the ld. CIT(A) or the first appellate authority cannot examine that issue or new source of income. Since the ld. CIT(A) has examined a new source of income in the instant case, the ld. CIT(A) has exceeded his jurisdiction. Therefore, the addition resulting into enhancement of income is not sustainable in the eyes of law. - Decided in favour of assessee - ITA No. 409/LKW/2015 - - - Dated:- 13-1-2016 - Sunil Kumar Yadav, JM For the Appellant : Shri S C Agrawal, Adv For the Respondent : Shri Harish Gidwani, DR ORDER Per Sunil Kumar Yadav This appeal is pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction to adjudicate the issue of sundry debtors and sundry creditors appearing in the balance sheet of the assessee. By adjudicating the issue of sundry debtors and sundry creditors, the ld. CIT(A) has exceeded his jurisdiction. Therefore, the addition made on account of enhancement is not sustainable in the eyes of law. In support of his contention, the ld. counsel for the assessee has placed reliance upon the judgment of the Hon'ble Delhi High Court in the case of CIT vs. Sardari Lal Co., 251 ITR 864, in which the Hon'ble High Court has categorically held, in the light of various judicial pronouncements of different High Courts and Apex Court, that whenever question of taxability of income from new source of income is concerned, which had not been considered by the Assessing Officer, the jurisdiction to deal with the same in appropriate cases may be dealt with under section 147/148 and 263 of the Act, if requisite conditions are fulfilled. It is inconceivable that in the presence of such provisions, a similar power is available to the first appellate authorities. He has also placed reliance upon other judgment of the Hon'ble Delhi High Court reported in 277 ITR 541 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try (1962) 44 ITR 891 (SC). The matter related to the corresponding provisions of the Indian Income Tax Act, 1922 (hereinafter referred to as the old Act ). It was held, inter alia, that in an appeal filed by the assessed, the Appellate Assistant Commissioner has no power to enhance the assessment by discovering a new source of income not considered by the Income Tax Officer in the order appealed against. A similar view was expressed in CIT v. Rai Bahadur Hardutroy Motilal Chamaria (1967) 66 ITR 443 (SC). That also related to a case under section 31(3) of the old Act. It was held that the power of enhancement under section 31(3) of the old Act was restricted to the subject-matter of the assessment or the source of income, which had been considered expressly or by clear implication by the assessing officer from the point of view of taxability and that the Appellate Assistant Commissioner had no power to assess the source of income, which had not been taken into consideration by the assessing officer. It is to be noted that strong reliance was placed by learned counsel for the revenue on the decision of the Apex Court in CIT v. Nirbheram Daluram (1997) 224 ITR 610. It was submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e view expressed in Shapoorji's case (supra) and Chamaria's case (supra) still holds the field. It may be noted that the issue was considered in CIT v. McMillan and Co. (1958) 33 ITR 182 (SC). Referring to a decision of the Bombay High Court in Narondas Manohar Dass v. CIT (1957) 31 ITR 909 (Bom), it was held that the language used in section 31 of the old Act is wide enough to enable the first appellate authority to correct the Income Tax Officer not only with regard to a matter which has been raised by the assessed but also with regard to a matter which has been considered by the assessing officer and determined in the course of the assessment. It is also relevant to note that in the Jute Corporation's case (supra), the Apex Court, inter alia, observed as follows: The Appellate Assistant Commissioner, on an appeal preferred by the assessed, had jurisdiction to invoke, for the first time, the provisions of rule 33 of the Indian Income Tax Rules, 1922 (hereinafter referred to as 'the Rules'), for the purpose of computing the income of a non-resident even if the Income Tax Officer had not done so in the assessment proceedings. But, in Shapoorji Pallonji Mis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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