TMI Blog2016 (5) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Tribunal was the addition of ₹ 2.02 crores. The learned Tribunal could either have upheld the same or could have set aside the same. The learned Tribunal chose to set aside that addition. The matter should therefore have come to an end in the absence of any cross objection by the revenue. We are of the opinion that the addition of a sum was clearly in excess of jurisdiction. Therefore, the question is answered in the negative and in favour of the assessee. - ITA No. 825/2004 - - - Dated:- 26-2-2016 - Girish Chandra Gupta And Shivakant Prasad, JJ. For the Appellants : Mr J P Khaitan, Sr Adv. with Mr S Das, Adv. Mr A Chaudhary, Adv Mr R Poddar, Adv For the Respondent : Mrs S Chatterjee, Adv JUDGMENT Girish Chandra Gupta, J. The subject matter of challenge in the appeal is a judgment and order dated August 31, 2004, passed by the learned Income Tax Appellate Tribunal, A Bench, Kolkata, pertaining to the block period commencing from April 1, 1988 upto April 21, 1998, passed in I.T.(SS)A. No.103/Kol/2003, partly allowing the appeal preferred by the assessee. Aggrieved by the judgment and order of the learned Tribunal, the assessee has come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arges by overcharging the kilometers covered to the extent of the amounts. This means to these extents the assessee had not incurred any expenditure but received the transportation charges. The result of examination and verification of expenses and sundry creditors on a/c. of transportation charges, which is discussed in the next para, is corroborative of not incurring such huge expenses as claimed on a/c. Therefore, the total amount of excess claim of transportation charges which comes to ₹ 1,19,20,777/- + ₹ 23,14,827/- + ₹ 60,01,380/-) = ₹ 2,02,36,984/- is treated as Undisclosed income of the assessee. The Assessing Officer was also of the opinion that the assessee had shown bogus expenditures and bogus creditors, the peak amount whereof was ₹ 1,59,38,774/-. The Assessing Officer, however, did not treat the said sum of ₹ 1,59,38,774/- on the undisclosed income as the same was less than the amount of excess billing, as discussed earlier, no separate addition is made on this account. Aggrieved by the order of the Assessing Officer, an appeal was unsuccessfully preferred by the assessee to the CIT(Appeal). The matter was thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s claimed by the assessee were bogus in nature. In this view of the matter, we hold that the Revenue authorities were justified in treating the total peak amount of outstanding balances shown against these creditors at ₹ 1,59,38,774/- as undisclosed income of the assessee for the relevant previous years. Accordingly, we confirm the addition of ₹ 1,59,38,774/- (against the addition of ₹ 2.02 crores made by the Revenue) on account of the bogus nature of the expenses claimed by the assessee and reflected in the total peak amount of outstanding balances shown against the creditors. Accordingly, the ground of appeal No.5 and 8 of the assessee is partly allowed and grounds of appeal No.6 and 7 are dismissed. Aggrieved by the aforesaid order, the assessee is before us in appeal under section 260A. The questions of law formulated have already been indicated above. It is not in dispute that no cross objection was filed by the revenue challenging the order of the CIT (Appeal). The CIT (Appeal) had upheld the order of the Assessing Officer. In other words, he restricted the addition to a sum of ₹ 2.02 crores. He also approved the refusal of the Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Income- tax (Appeals) failed to appreciate that no addition could be made in the hands of the Appellant on the basis of the claim made which are not yet final and adjudicated. 6. For that further and in any event various prejudicial findings of the Assessing Officer in respect of Sundry Creditors of the Appellant and confirmed by the Commissioner of Income- tax(Appeals) are without any basis and / or material and have been arrived at by ignoring relevant materials and evidence and are based on surmises and conjectures. 7. For that no proper enquiry was made by the Assessing Officer in respect of genuineness of the Sundry Creditors and the said enquiry was in violation of natural justice and fairplay and the Commissioner of Incometax( Appeals) erred in confirming the addition on the basis of the said perverse findings. 8. For that further and in any event and without prejudice to the above the alleged discrepancy in the sundry creditors as found by the Assessing Officer was to the extent of ₹ 1,59,38,774/- only and the addition in excess of the said amount is illegal, arbitrary and perverse. She submitted that the issue had been raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) are wide enough to include a power of enhancement, without an appeal by the Commissioner. The, word thereon used in S. 33(4) only means on the appeal, which must mean on the grounds raised in the appeal. Read in that way, the sub-section only gives power to the Appellate Tribunal to give its decision and pass orders in respect of all grounds urged (which must be on behalf of the appellant) in respect of the decision, appealed against. In deciding those grounds it can pass appropriate orders. But, in our opinion, it is not open to the Tribunal itself to raise a ground or permit the party, who has not appealed, to raise a ground, which will work adversely to the appellant. It will be of some interest to notice section 33 of the 1922 Act, which was as follows: Section 33. Appeals against orders of Appellate Assistant Commissioner (1) Any assessee objecting to an order passed by an Appellate Assistant Commissioner under Section 28 or Section 31 may appeal to the Appellate Tribunal within sixty days of the date on which such order is communicated to him. (2) The Commissioner may, if he objects to any order passed by an Appellate Assistant Commissioner under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be deemed to be satisfied with the decision, must be taken to have acquiesced therein and be bound by it, and, therefore, cannot seek relief against a rival party in an appeal preferred by the latter, has not been deviated from in sub-s. (4)(a)(i) above. In other words, in the absence of an appeal or cross-objections by the department against the AAC's order the Appellate Tribunal will have no jurisdiction or power to enhance the assessment. Further, to accept the construction placed by the counsel for the appellant on sub-s. (4)(a)(i) would be really rendering sub-s. (2) of s. 39 otiose, for if in an appeal preferred by the assessee against the AAC's order, the Tribunal would have the power to enhance the assessment, a provision for crossobjections by the department was really unnecessary. Having regard to the entire scheme of s. 39, therefore, it is clear that on a true and proper construction of sub-s. (4)(a)(i) of s. 39 the Tribunal has no jurisdiction or power to enhance the assessment in the absence of an appeal or crossobjections by the department. It is true that the two Bombay decisions reported in [1945] 13 ITR 272 and [1957] 31 ITR 844, on which the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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