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TMI Blog2025 (5) TMI 1396X X X X Extracts X X X X X X X X Extracts X X X X ..... f by this common order for the sake of convenience. ITA NO. 8271/Del/2019 - Assessee Appeal 2. At the outset, we find that the assessee vide Application filed under Rule 11 of the Income Tax Tribunal Rules had filed an additional ground of appeal as under:- "That the Ld. Commissioner of Income-tax(Appeals) erred in law in enhancing the income of the appellant in respect of the matter not considered and determined by the Assessing Officer during the course of assessment proceedings." 3. We find that this additional ground goes to the root of the matter and purely legal in nature. The facts relevant for its adjudication are already on record. Further we find that the issue raised in the additional ground is already the subject matter of Original Ground No. 1 raised before us. The additional ground is just another facet of the argument supporting the challenge of addition made on account of provision for contract loss of Rs 1,54,68,260/-. Hence the said additional ground is hereby admitted and taken up for adjudication. 4. The assessee has raised the following grounds of appeal before us:- "1 On the facts and in law, the Ld. CIT(A) grossly erred in enhancing the income of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 348 ITR 170 (Del) which is directly on the issue. The relevant operative portion of the said judgement is reproduced hereunder:- "19. To the same effect is the judgment of another Division Bench of this Court in CIT v. Union Tyres [1999] 240 ITR 556/107 Taxman 447 reiterating that first appellate authority cannot consider new scope of income under Section 251(1) of the Act. Following question from the same judgment can aptly be: "Section 251 of the Act prescribes the power of the Appellate Assistant Commissioner, now Commissioner (Appeals). Section 251(1)(a) of the Act empowers the Appellate Assistant Commissioner in disposing of an appeal by the assessed against an order of assessment to confirm, reduce, enhance or annul the assessment or to set aside and refer the case back to the Income Tax Officer for making fresh assessment in accordance with the directions given by the Appellate Assistant Commissioner. "Explanation" to Section 251 provides that the Appellate Commissioner may hear and decide any matter arising out of the proceedings in which the order appealed against was passed notwithstanding that such a matter was not raised before the Appellate Commissioner by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith regard to a matter raised by the assessed in appeal but also with regard to any other matter which has been considered by the Assessing Officer and determined in the course of assessment. However, there is a solitary but significant limitation to the power of revision, viz. that it is not open to the Appellate Commissioner to introduce in the Assessment a new source of income and the assessment has to be confined to those items of income which where the subject-matter of original assessment." The aforesaid view taken by the Division Bench was confirmed by the Full Bench of this Court in Sardari Lal & Co. (supra) observing as under:- "Looking from the aforesaid angles, the inevitable conclusion is that whenever the question of taxability of income from a new source of income is concerned, which had not been considered by the Assessing Officer, the jurisdiction to deal with the same in appropriate cases may be dealt with under section 147/148 of the Act and section 263 of the Act, if requisite conditions are fulfilled. It is inconceivable that in the presence of such specific provisions, a similar power is available to the first appellate authority. That being the position, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to his books of account. ii. Shanti Nagar This again was a joint venture proposal by GMS Construction Co. Pvt. Ltd. with Mr. Jeetu for the development of properties at Shanti Nagar. That both Mr. Jeetu and GMS Construction Co. Pvt. Ltd, were to invest and share the profit in equal proportion as stated on the paper under reference. All the initial payments for the purchase of land were made by GMS Construction Co. Pvt. Ltd. and no contribution was received from Mr. Jeetu. This joint venture could not be finalized due to the same reason as state above i.e. recession in the real estate business and fall in the market price of the properties. The advances made for Shanti Nagar properties are not related to the assessee and hence to his block assessment." The assessee furnished its comments to the said page which reflected the transactions relating to property purchase at R.T. Nagar, Shanti Nagar and Chellagatta etc. It is thus clear that this very property in respect of which additions are made by the CIT(A) was the subject matter of consideration before the Assessing Officer. It is a different matter that after the reply submitted by the assessee, the Assessing Officer chose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o could not reconcile the nature and balance of the sums that were sought to be written off qua the respective parties . 10. The learned AR vehemently pleaded that this is not a provision that was made on account of doubtful advances and rather the same represents actual amounts written off. It was submitted that the advances were given in the regular course of its business and the same becoming irrecoverable, the assessee had no choice but to write off the same during the year under consideration and claim the same as deduction to the tune of Rs 81,10,231/-. The learned AR however fairly agreed for restoring this issue back to the file of learned AO for this factual verification. No objection was raised by the learned DR before us for the same. Accordingly, we deem it fit and appropriate, in the interest of justice and fair play, to restore this issue to the file of learned AO for de novo adjudication in accordance with law only for the limited extent of Rs 81,10,231/- (4,14,74,122 - 3,33,63,891). The assessee is at liberty to furnish fresh evidences, if any, in support of its contentions. Accordingly, the Ground No. 2 raised by the assessee is allowed for statistical purposes. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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