TMI Blog1995 (10) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by the Assessing Officer. However, certain other additions were made by the Assessing Officer and the assessee took the original assessment before the CIT(A). The CIT(A) vide his order dated 5-2-1992 set aside the original assessment observing as under : " I have considered the facts and the appellant's submissions. It is the appellant company's contention that considering the facts which can be verified, no addition or disallowance on any count can be made in the appellant's case. It is the appellant's contention that the Assessing Officer has made the impugned additions and disallowances in an arbitrary manner without adducing any material in support of his action. It is the appellant's contention that the impugned additions/disallo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e up an issue which was not in the earlier assessment order. It was the contention of the assessee before the CIT(A) that the original assessment was set aside on certain limited issues but the Assessing Officer took the matter further and made the addition of Rs. 81,62,606 in respect of the excise duty collected and sought to tax it as trading receipt; when no such addition was made; that point was not before the CIT(A) and the matter was set aside to examine the additions/disallowances and the Assessing Officer was not therefore entitled to examine this aspect and hence the addition was sought to be deleted. The CIT(A) negatived the contention of the assessee on the ground that his predecessor did not give any specific direction to the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned counsel for the assessee further submitted that the Orissa High Court in the case of S. V. Divakar has pointed out as under : " In CIT v. Rai Bahadur Hardutroy Motilal Chamaria [1967] 66 ITR 443, it was observed by the Apex Court that, while deciding an appeal from an order passed by the Assessing Officer, the Appellate Assistant Commissioner has no jurisdiction to assess a source of income which has not been processed by the Assessing Officer and which is not disclosed either in the return filed by the assessee or in the assessment order and the A.A.C., therefore, cannot travel beyond the subject-matter of the assessment. Consequently, the A.A.C., while setting aside the assessment, cannot empower the Assessing Officer to go i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le opportunity in the matter. According to the learned counsel the word "the" is 'Definite Article' and refers to what is previously mentioned. The learned counsel has further submitted that 'assessment' can never be a 'matter' and if the whole para is read, then the clear and harmonious construction that emerges is that the assessee should be given a further opportunity in respect of various contentions which according to the CIT(A) have not been properly dealt with. The learned counsel for the assessee submitted that what was given as an opportunity is sought to be converted by the department into a handle to make a huge uncalled for addition on a source which was never shown in the return, discussed in the assessment order or in the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise duty amounting to Rs. 81,62,606 collected by the assessee but not deposited in the Govt. A/c. was disallowable under section 43B of the Act and he accordingly made the impugned addition of Rs. 81,62,606, relying upon the judgments of the Supreme Court in the cases of Chowringhee Sales Bureau (P.) Ltd. and Sinclair Murray Co. (P.) Ltd. 5. We have considered the rival submissions and perused the facts on record. We have very carefully gone through the order of the CIT(A) dated 5-2-1992 setting aside the original assessment order. His conclusion has been reproduced by us in para-2 above. A plain reading of the remarks of the CIT(A) reveals that the entire assessment was set aside by him and accordingly we do not agree with the contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in disposing of an appeal. The scope of his power is coterminous with that of the ITO. He can do what the ITO can do and also direct him to do what he has failed to do." [Emphasis supplied] We may further add that the Explanation appended to section 251 further confers wide powers on the CIT(A) in disposing of an appeal against the order of the Assessing Officer. 5.1 Coming to the two cases relied upon by the learned counsel for the assessee, viz., Rai Bahadur Hardutroy Motilal Chamaria's case and S. V. Divakar's case it is noted that the Supreme Court in the first case has held that the A.A.C. has no jurisdiction to assess a source of income which has not been processed by the Assessing Officer and which is not disclosed either in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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