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TMI Blog2020 (12) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial justice for a decision in accordance with law. 2. Because the action is under challenge on facts and law for making addition of Rs. 14,09,372/- by disallowing set off of carried forward losses u/s. 72 and unabsorbed depreciation u/s. 32 on the basis of assessment order u/s. 143(3) for the AY 2015- 16. 3. Because the action is under challenge on facts and law since CIT(A) has no power to go beyond the matter arising out of the proceedings before the AO more particularly when the separate provisions for eventuality are provided under the Income Tax Act, 1961. 4. Because the action for enhancement of addition of Rs. 43,91,000/- is being challenged on facts and law by making addition u/s. 68 by treating deemed income of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 and order of the ITAT, Delhi Bench passed in the case of Kishore Jeram Bhai Khaniya vs. ITO dated 13.05.2014 which is at page no. 14-22 of the Paper Book filed by the assessee. He stated that income of the assessee has been enhanced by the Ld. CIT(A) which is illegal and invalid and beyond the powers of the Ld. CIT(A), because the AO has not made any addition on account of consultancy income of Rs. 43,91,000/-. Hence, the Ld. CIT(A) cannot make enhancement on the issue which does not arise out of the order of the assessment. He further submitted that according to section 251(2) of the Income Tax Act, 1961, the CIT(A) cannot enhance the assessment on the matter which is not arising out of the assessment proceedings and this issue is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs. As in the case of the assessee, the Ld. CIT(A) has enhanced the income of the assesee on account of consultancy amounting to Rs. 43,91,000/- which has not been arisen out of the order of assessment in dispute. Therefore, the impugned order dated 28.06.2019 passed by the Ld. CIT(A) is illegal and invalid and beyond the powers of the Ld. CIT(A) and is thus liable to be cancelled. Accordingly, we cancel the same. Our aforesaid view is fortified by the decision of the Delhi Tribunal in the case of Ramesh Kumar Pabbi vs. ACIT dated 01.08.2018 passed in ITA No. 5594/Del/2014 (AY 2010-11) wherein, it has been held as under:- "8. The Ld. Counsel for the assessee submitted that the enhancement of income by Ld. CIT (Appeals) is illegal and inva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee. The A. O. has proceeded to compute income of the assessee on the basis of the income as per intimation u/s 143 (1) of the Act; whereas the A.O. was required to compute the income of the assessee on the basis of income returned. This was a ground raised before the CIT (A) and is a part of ground of appeals in the present appeal. It being wholly legal ground of the appeal deserves to be adjudicated. The Assessing Officer has acted beyond the jurisdiction by computing income of the assessee on the basis of income of the assessee as per Section 143 (3) where as the intimation was u/s 143 (1). The CIT (A) acted beyond its power by directing the Assessing Officer to tax the capital gains in respect of sale of land at Gurgaon, though, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, we are of the view that addition made by enhancement of commission expenses is wholly unjustified. In this case the Assessing Officer did not made disallowance out of commission expenses. The Ld. CIT (Appeals) has taken up the issue of commission expenses suo-moto in the appellate proceedings, therefore, the issue of commission did not arises out of the assessment proceedings. It is well settled law that Ld. CIT (A) was not empowered to enhance an income which is not matter of assessment. The issue is covered by aforesaid judgments relied upon by Ld. counsel for the assessee. It is, therefore, clear that Ld. CIT(A) cannot touch upon an issue which does not arise from the order of the assessment and was outside the scope of the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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