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TMI Blog2017 (3) TMI 1473X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-05, 2005- 06 and 2006-07 for taxation of Rs. 6,22,034/- and Rs. 3,00,000/- respectively which is not permissible under the law and contravenes prevailing legal standards." 4. Facts of the case are that the assessee is proprietor of M/s. Jaichand Nanakram dealing in utensils and thermo ware etc. The return of income was filed for the assessment year 2007-08 on 02.11.2007 at a total income of Rs. 1,43,580/-. A survey u/s 133A of the Income-tax Act, 1961, was conducted at the business premises of the assessee on 13.03.2007, in which the assessee surrendered undisclosed income stating that the assessee would declare the income surrendered by him, but assessee retracted and did not disclose the same in his return of income. A survey was also conducted at the business premises of the assessee by the Sales Tax Authorities on 14.02.2007. As per the Sales Tax Order, the sales for the year were assessed at Rs. 64,99,442/-. The assessee was found to have made an under declaration of sales by Rs. 16,90,251/-. 5. During assessment proceedings, the house property was referred for valuation to the DVO u/s 142A of the Act who submitted the valuation report stating undisclosed investment in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red/made in A.Y. 2006-07. I find merit in this part of the submissions of the ld. AR The addition of Rs. 3,00,000/- is accordingly deleted in A.Y. 2007-08. The AO is directed u/s 150(1) of the Act to make the above addition in assessment year 2006-07. The ground of appeal is disposed of as above." 7. Being aggrieved, the assessee has filed this appeal before the Tribunal. The ld. Authorized Representative of the assessee submitted that the ld. CIT(A) has erred in giving direction to the AO for the assessment years 2004-05, 2005-06 and 2006-07, which not subject matter of appeal before him. The ld. AR took us through the provisions of Section 251 and submitted that according to section 251, the ld. CIT(A) may confirm, reduce, enhance for annulling the assessment or may conduct enquiry as he may think fit for the year under appeal, but he cannot give any direction for the assessment years, which are not in appeal before him. In support of this contention, the ld. AR placed reliance on the decision of Indore Bench of Tribunal in the case of M/s. Om Prakash Bagdia, Ujjain vs. ACIT, Ujjain, (2005) 4 ITJ 106 (Indore Tribunal) (copy placed on record), wherein it was held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court observed that the AAC might hold on the evidence that the income shown by the assessee was not the income of the relevant year and thereby exclude that income from the assessment of the year under appeal. We find that in the case of Dave (Mrs. RH) 140 ITR 1035 (Cal), where assessee's land was acquired by Government in May 1961 but compensation was received and assessed in assessment year 1971-72 as income from other sources. Ld. CIT(A) while deleting the impugned addition on the ground, inter-alia, held that relevant capital gains had already been taxed in assessment year 1962-63 when land was acquired, directed ITO to bring it to tax in current assessment year. Such directions of the ld. CIT(A) were held to be unsustainable. We find that in Onkar Nath, 64 ITR 347 (All.), Hon'ble Allahabad High Court held that the law gives the AAC the power to give direction that a certain sum which was deleted from the assessment of the firm should be assessed in the hands of a partner as his individual income. For the assessment year 1957-58, the ITO made an addition which included certain sum introduced in the head office cash book in November 1955. On appeal, the AAC delete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion pertaining to assessment years 2008-09 to 2011-12, years which were not subject matter of appeal were without jurisdiction - Whether directions contained in impugned order pertaining to subsequent assessment years shall not be construed to be of binding nature and it will be open for Assessing Officer to proceed with assessment proceedings in accordance with law uninfluenced by said impugned observations/directions contained in impugned order - Held, yes [Para 7][In favour of assessee]" 11. The ld. Authorized Representative of the assessee, therefore, requested that the directions issued for making addition of Rs. 6,22,034/- and Rs. 3 lakhs in A.Y. 2004-05 to 2006-07 may be expunged. 12. On the other hand, the ld. DR submitted that the ld. CIT(A) has found that certain unexplained investment reflected in DVO's report were pertaining to assessment years 2004-05 to 2006-07 as reproduced by the AO in the table given in the assessment order. Therefore, the ld. CIT(A) has accepted the contention of the assessee that the same cannot be added for the assessment year under appeal. Hence, it was deleted. However, the ld. CIT(A) had directed the AO to tax the said unexplained investme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t years i.e. A.Y. 2004- 05 to 2006-07. The assessee has challenged the findings of the ld. CIT(A) on this account stating that it is the beyond the power of the CIT(A) to give such direction for the assessment years which are not subject matter of appeal before him. The Ld. Counsel for the assessee also placed reliance in the case of M/s. Om Prakash Bagdia, Ujjain vs. ACIT, Ujjain, (2005) 4 ITJ 106. (Indore Trib.), Lilasons Industries Limited vs. ACIT, Bhopal, (2016) 29 ITJ 261 (Indore Trib.) and Computer Science Corporation India (P) Limited vs. Addl. CIT & Ors, (2014) 99 DTR (MP) 383, which supports his contention. To appreciate the provisions in proper perspective, it would be relevant to reproduce Sections 150(1) and 150(2), which read as under :- "150. Provision for cases where assessment is in pursuance of an order on appeal, etc. (1) Notwithstanding anything contained in section 149, the notice under section 148 may be issued at any time for the purpose of making an assessment or reassessment or recomputation in consequence of or to give effect to any finding or direction contained in an order passed by any authority in any proceeding under this Act by way of appeal, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for assessment years 2004-05 to 2006-07 by issuing notice for reopening of assessment for aforesaid years is barred by limitation. This view is supported by the decision of Third Member Bench in the case of Emgeeyar Pictures (P) Limited vs. Dy. CIT, Media Circle-I, Chennai ( Chennai - Trib.) (TM). If we read sub Section (2) of Section 150, it provided that sub Section (1) thereof will not apply to a case of assessment, reassessment or recomputation of income, if it related to assessment year in respect of which assessment, reassessment etc. could not have been made at the time when the order, which was the subject matter of appeal, reference or revision was made, by reason of the time limits fixed u/s 153 for making the reassessment, it would be seen that sub section (2) of Section 150 does not refer to Section 153. It only refers to " any other provisions limiting the time within which any action for assessment, reassessment or recomputation may be taken. The word "taken" refers only to initiation of proceedings and not to completion. The time limit for initiation of such proceedings are contained in Section 149 & 150 while the time limit for completion of such proceedings are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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