TMI Blog2017 (11) TMI 1934X X X X Extracts X X X X X X X X Extracts X X X X ..... on made by the Ld. CIT(A) during remand report has not been recorded in the order of Ld. CIT(A). The provision of Section 250(6) of the Act require the commissioner appeal to dispose of the appeal in writing and with reasoning but we find from the appellate order that where he has given relief to assessee merely relying on the submissions made by assessee. We also note that lot of information were submitted by assessee before Authorities Below which has not been duly verified. Therefore we are inclined to restore the matter back to the file of AO for fresh adjudication in accordance with law. The AO must give reasonable opportunity to the assessee before passing order on this point. Accordingly, Revenue s issue is allowed for statistical purpose. Reopening of assessment - whether CIT(A) erred in not issuing direction to the AO u/s 150(1) to reopen the assessment for those years in which the investment had been made by the assessee - HELD THAT:- Respectfully following the judgment in the case of Murlidhar Bhaghubabu [ 1964 (1) TMI 5 - SUPREME COURT] we conclude that Ld. CIT(A) has no power under the provision of law for giving any direction to AO for reopening of assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has not been filing his income tax return and he declared several bank accounts, Postal Savings, MIS, fixed deposits and investment made in the mutual fund in his deposition u/s. 131 of the Act. It was also observed that assessee also had bank accounts in the name of his two minor daughters. Thus, the re-assessment proceedings were initiated against the assessee u/s 147 of the Act. 6. During the course of assessment proceedings, AO observed that the assessee had declared his gross contractual receipts for ₹12,00,436/- in his profit and loss account. But on perusal of bank statement of the assessee, it was found that gross receipts in the banks are at ₹79,82,418/- only besides the interest income. Thus, AO observed that difference of ₹58,81,982/- (7082418 1200436) between gross receipt declared in the income tax return vis-a-vis gross receipt appearing in the bank statement. Accordingly, an explanation was sought by the AO from assessee on account of mismatch in the gross receipts as discussed above. However, assessee failed to reconcile the difference as discussed above. Therefore, AO treated the difference of ₹58,81,982/- as undisclosed inves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,418/-) and treated the balance amount of ₹ 58,81,982/- as undisclosed investment of the appellant in the business and finally as his income. In the remand report AO has not mentioned how total of receipts in bank statement of ₹ 58,81,982/- is undisclosed income/investment. No new facts were brought by Assessing Officer. On perusal of bank statement and details submitted by the A/R it was found that investment in FD/NSC is from earlier years but matured during the year, sale and purchase of MFs is out of available has not examined both Dr Cr side of bank statement for coming to final conclusion of unaccounted investment. Simply adding receipts side bank statement does not make the transactions unaccounted. No effort was made by AO in assessment order and even in remand to figure out unaccounted receipts. The A/R worked out unaccounted receipts to the tune of ₹ 3,49,589/-. Amount to the extent of ₹ 3,49,589/- is confirmed and balance amount of ₹ 55,32,393/- is deleted. Appellant gets relief of ₹ 55,32,393/-. The Revenue, being aggrieved, is in appeal before us. 8. Ld. DR before us submitted that the order passed by Ld. CIT(A) is nonspeaki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reakup of FD i.e. i.e. principal amount vis- -vis interest amount; iii) No comment whether the interest on FD were offered to tax on the basis of cash method or mercantile method. iv) No finding for the deduction of TDS by the bank on the payment of interest on FD/saving bank account; b) Sale and purchase of mutual fund is out of available fund because assessee has declared capital gain on the realization of mutual fund for ₹1,06,212/- only. The gross sale proceed of realization of mutual fund was shown for ₹14,42,721/- where the cost price of mutual fund was shown for ₹13,36,500/- only. Thus the gain of ₹1,06,212/- was offered in the income tax return. But there is no whisper in the order of Ld. CIT(A) about source of investment made by assessee in the impugned mutual fund. c) Ld. CIT(A) in his appellate order has admitted the fact that AO has not examined both debit and credit side of the bank account. But Ld. CIT(A) has also not commented on all the debit and credit side of the bank statement of the assessee. d) It was also observed by Ld. CIT(A) in his appellate order that Assessing Officer failed to put any effort in his assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to tax the escapement of income then it has followed the scheme provided under the Act. The relevant provisions for taxing the escape income are given u/s 147/263 of the Act. In holding so, we find support and guidance from the judgment of Hon'ble Supreme Court in the case of ITO vs. Murlidhar Bhaghubabu reported in 52 ITR 335 (SC). The relevant extract of the judgment is reproduced below:- Section 33(4) of 1922 Act only refers to a finding or direction made by an appellate authority and does not itself confer any power on an appellate authority to make a finding or direction. Indeed, section 34 of 1922 Act deals with entirely a different aspect, that of empowering an ITO to bring to assessment escaped income, and has no concern with the powers of an appellate authority. The provision which deals with the powers of an appellate authority is section 31 of 1922 Act. Respectfully following the judgment of Hon'ble Supreme Court in the case of Murlidhar Bhaghubabu (supra) we conclude that Ld. CIT(A) has no power under the provision of law for giving any direction to AO for reopening of assessment. The appeal before Ld. CIT(A) is confined to the particular assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X
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