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TMI Blog2022 (11) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. 3. Briefly, the facts are the assessee is a trust having the status of Association of Person (AOP). For the assessment year under dispute, the assessee did not file any return of income under section 139(1) of the Act. However, based on information received indicating that in the year under consideration, the assessee had deposited cash in its bank account, the Assessing Officer reopened the assessment under section 147 of the Act. As alleged by the Assessing Officer, neither in response to notice issued under section 48 nor 142(1) of the Act, the assessee made any response. Therefore, Assessing Officer proceeded to complete the assessment to the best of his judgment by invoking the provision of section 144 of the Act. While doing so, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ltural Farms Pvt. Ltd. vs. ITO(2022) 95 ITR (Trib) 74 (Delhi) ii) CIT vs Aar Pee Apartments (P.) Ltd. 319 ITR 276 6. Ld. Departmental Representative strongly relied upon the observations of the Assessing Officer and learned Commissioner (Appeals). 7. I have considered rival submissions and perused the material available on record. Undoubtedly, the addition in dispute represents the cash deposit made in the bank account. On perusal of the impugned assessment order, it is very much clear that while making the addition of the cash deposit, the Assessing Officer has treated it as unexplained cash credit under section 68 of the Act. Whereas, while deciding assessee's appeal learned Commissioner (Appeals), though, has accepted assessee's cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ope and ambit of the two separate provisions are altogether different, the addition cannot be changed to another provision. Following the aforesaid decision of the Hon'ble Jurisdictional High Court, the coordinate bench in the case of Toffee Agricultural farms Pvt. Ltd. vs. ITO (supra) had expressed the view that the first appellate authority unilaterally has no power to change the section under which the Assessing Officer has assessed an item of income. Thus, respectfully following the ratio laid down in these decisions, I hold that the addition made confirmed under section 69A of the Act deserves to be deleted. Accordingly I do so. 8. In the result the appeal of the assessee is allowed. Order pronounced in the open court on 14th Novembe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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