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TMI Blog2022 (4) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... 69B of the Act. The learned CIT(A) further erred in sustaining Section 69B of the Act for Section 69C of the Act applied by the Assessing officer while making the impugned addition. 1.1 The learned CIT(A) has erred both on facts and in law in not providing opportunity to the company when substituting section 69B of the Act for Section 69C of the Act, for sustaining the addition of Rs. 21,00,000 made by the assessing officer by applying Section 69C of the Act. 2 The learned Commissioner of Income Tax (Appeals) has erred both on facts and in law in not providing sufficient opportunity of being heard to the assessee company in re-characterizing the additions made by the learned Assessing Officer in his assessment order dated _____. 3 The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d CIT(Appeals), who after considering the submissions dismissed the appeal. Aggrieved against this the assessee is in appeal before this Tribunal. 3. I have heard rival submissions, perused the material available on record and gone through the orders of authorities below. Undisputedly the facts of the present case are identical to the facts as in the case of M/s Toffee Agricultural Farms Pvt. Ltd. (ITA no. 4903/Del/2019 for A.Y. 2006-07). The parties have also adopted the same arguments. In the case of M/s Toffee Agricultural Farms Pvt. Ltd. (supra), vide order of even date, I have decided the issue against the revenue and deleted the addition by holding as under: "5. I have heard rival submissions, perused the material available on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coming to the question regarding action of the learned CIT(Appeals) to treat the reference u/s 142 for the purpose of Section 69B, I find merit into the contention of the assessee that there is no power conferred upon the learned CIT(Appeals) to assess a particular item under different provision of the Act what the Assessing Officer had done without giving a specific notice to the assessee regarding such action. The Revenue has not brought any material to suggest that the assessee was put to notice by the learned CIT(Appeals) before taking such action. I am of the considered view that law does not permit for such change of provision of law. As per Section 250 of the Act, the learned CIT(Appeals) is empowered to make further inquiry as he th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdictional High Court. I, therefore, respectfully following the decision of the Hon'ble Jurisdictional High Court in the case of CIT Vs. Aar Pee Apartments (P) Ltd. (supra), the impugned order is therefore set aside. The addition made u/s 69C on the basis of the report of the DVO by the Assessing Officer deserves to be deleted. Hence, impugned addition is hereby deleted. Grounds of appeal taken by the assessee are allowed accordingly" 4. For the very same reasons herein also I set aside the orders of the authorities below and direct the Assessing Officer to delete the addition in question. Grounds taken by the assessee are allowed accordingly. 5. In the result, assessee's appeal is allowed. Order pronounced in open Court on 18th April ..... X X X X Extracts X X X X X X X X Extracts X X X X
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