TMI Blog2023 (6) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... he provision. It is not the function of the Court to legislate or to plug the loopholes in the law. In the light of the above binding precedent the action of the learned CIT(Appeals) in treating the addition made by the Assessing Officer u/s 69C as have been made u/s 69B is contrary to the law. From the reading of sub-section (1) of Sec. 142A of the Act, it is clear that the legislature referred to the provisions of Sec. 69, 69A and 69B of the Act but specifically excluded the provisions of Sec. 69C of the Act. In such a situation the well known principle of casus omissus becomes applicable. In my humble understanding what is not included by the legislature in its wisdom and rather specifically excluded as per legislative intention, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d no. 3 to 8 11 which are reproduced as under- I. That the action of AO to make addition of Rs. 2577794.00 has lead to the disallowance of legitimate business loss incurred by the assessee on account of securities commodity transactions indirectly which is not permissible under the provisions of the Income Tax Act, 1961 and the assessee is eligible for set off of such business losses under the law. II. That the learned ITO very much prejudice with the assessee for the reasons best known to him and due to that reasons he wait for more than 5 month in framing proposal for conversion of case from limited security to complete scrutiny for harassment of the assessee. III. That the action of the Id AO to convert the case fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee in the records. That the appellant craves the leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing and all the above grounds are without prejudice to each other. 2. Ground No. 1 2 of assessee Apropos these grounds, the ld. Assessee s Representative (AR) submitted that having regards to the facts and circumstances of the case, the findings and order of the Ld.CIT(A) that addition made by the Assessing Officer u/s 69 of the Income Tax Act, 1961 (for short the Act ) was confirmed by changing the section 69C of the Act particularly when the assessee never raised any ground of appeal for conversion of addition made by the AO to Sec. 69C of the Act instead of Sec. 69 of the Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oversy was adjudicated by the Tribunal in the case of M/s Toffee Agricultural Farms P. Ltd. (supra) by holding as under: 5. I have heard rival submissions, perused the material available on record and gone through the orders of authorities below. The objection of the assessee regarding erroneous reference to the DVO, it was submitted that the Assessing Officer was not empowered to refer the matter to DVO, where the assessment was being made u/s 69C of the Act. In support of this contention, learned counsel for the assessee has placed reliance on various case laws. There is no dispute with regard to the fact that the Assessing Officer in the assessment order has stated addition regarding unexplained expenditure u/s 69C of the Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 thinks fit or may direct the Assessing Officer to make further inquiry and report to the learned CIT(Appeals). As per Section 251(l)(a), in appeal against an order of assessment, he may confirm, reduce, enhance or annul the assessment, but there is no such power provided by the law that learned CIT(Appeals) could change the provision of law qua the item of which assessment was made. Therefore, in the absence of such power, learned CIT(Appeals) could not have treated the addition made u/s 69C as the addition made u/s 69B and the same is contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances of the present case coupled with proposition rendered by the Hon ble Jurisdictional High Court of Delhi under identical circumstances in the case of CIT vs. Aar Pee Apartments P. Ltd. (supra), I respectfully note that from the reading of sub-section (1) of Sec. 142A of the Act, it is clear that the legislature referred to the provisions of Sec. 69, 69A and 69B of the Act but specifically excluded the provisions of Sec. 69C of the Act. In such a situation the well known principle of casus omissus becomes applicable. In my humble understanding what is not included by the legislature in its wisdom and rather specifically excluded as per legislative intention, the only remedy is to amend the provision. I am cautious that it is not come wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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