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TMI Blog2014 (11) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... the submission of the A.O. that none of the appellate ignoring the submission of the A.O. that none of the conditions specified in Rule 46A are fulfilled and it is an after thought. The assessee could not furnish bills of cost of construction even at the appellate stage, which clearly proves that the assessee did not have evidence of cost of construction. 3. On the facts and circumstances of the case, the ld.CIT(A) had erred in holding that A.O. did not controvert or deny the admission of valuation reports at the appellate stage as is clear from A.O.'s letter dated 29.03.2012. 4. On the facts and circumstances of the case, the ld.CIT(A) erred in holding that Rs. 1.50 crore was withdrawn from the bank account only for the meeting the cost of construction of the two properties without verifying the full facts of the case. 5. The appellant craves leave to add, alter or amend any/all the grounds of appeal before or during the course of hearing of the appeal." 3. The assessee in his appeal has raised the following grounds:- "1. That having regard to the facts and circumstances of the case, ld.CIT(A) has erred in law and on facts in making addition of Rs. 35,00,000/- u/s 69B of Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the cost of improvement claimed by the assessee and he disallowed remaining 75% of the cost of improvement amounting to Rs. 1,34,20,036/-. He made the addition of Rs. 1,34,20,036/- to the returned income without specifying the head of income under which this addition is made. Before the learned CIT(A), the assessee filed the additional evidence in the form of valuation report of the registered valuer. The Assessing Officer called for the remand report of the Assessing Officer in which the Assessing Officer objected to the admission of additional evidence. The CIT(A) overruled the Assessing Officer's objections and admitted the additional evidence. The CIT(A) accepted the assessee's contention with regard to incurring of Rs. 1,84,47,250/- for the improvement in respect of these two properties. He, however, found that the assessee has shown the withdrawal from the bank of Rs. 1,50,00,000/- only. Therefore, he made the addition of Rs. 35,00,000/- as unexplained investment by the assessee in respect of improvement of these two properties. He also observed that the income is to be assessed under the head 'profit and gains of business' and not as 'capital gains'. He further observed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without allowing any opportunity to the assessee. He stated that no addition under Section 69B was made by the Assessing Officer and therefore, the action of the CIT(A) amounts to enhancement of income. He was duty bound to allow specific opportunity before making any enhancement. He further submitted that the CIT(A) directed that the income from short term capital gain is to be assessed as business income. Again, this finding is given without allowing any opportunity to the assessee. Similarly, penalty of Rs. 25,000/- us/ 271A was levied without any specific opportunity to the assessee. He, therefore, submitted that the assessee's appeal should be allowed and Revenue's appeal should be dismissed. 8. We have carefully considered the submissions of both the sides and perused relevant material placed before us. After considering the facts of the case and the arguments of both the sides, in our opinion, the entire matter needs re-examination at the end of the Assessing Officer. The Assessing Officer, for the first time, vide note sheet entry dated 15th December, 2010, asked the assessee to furnish complete bills of cost of improvement. The case was adjourned to 20th December, 2010. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout being prompted by the assessee, while dealing with the appeal, considers it fit to cause or make a further enquiry by virtue of the powers vested in him under sub-section (4) of section 250. It is only when he exercises his statutory suo moto power under the above sub-section, that the requirements of rule 46A need not be followed. On the other hand, whenever the assessee, who is in appeal before him, invokes rule 46A, it is incumbent upon the Commissioner (Appeals) to comply with the requirements of the rule strictly." 9. Learned counsel for the assessee has relied upon the decision of Hon'ble Jurisdictional High Court in the case of Virgin Securities and Credits P.Ltd. (supra). However, we find that the facts in that case were altogether different, which is clear from the following observation of Hon'ble Jurisdictional High Court :- "Held, dismissing the appeal, (i) that before admitting the additional evidence the Commissioner (Appeals) had obtained a remand report from the Assessing Officer. In the remand report the Assessing Officer had not objected to the admission of the additional evidence. The additional evidence was crucial to the disposal of the appeal and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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