9911796707
TMI Blog2022 (4) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... cluded by legislature and rather specifically excluded, cannot be interpreted by the Court through the process of interpretation. The only remedy is to amend the 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 laid down by the Hon ble Jurisdictional High Court - therefore, respectfully following the decision of the Hon ble Jurisdictional High Court in the case of CIT Vs. Aar Pee Apartments (P) Ltd. [ 2009 (8) TMI 256 - DELHI HIGH COURT] he impugned order is therefore set aside. The addition made u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Income Tax (Appeals) has erred both on facts and in law in confirming the addition by ignoring the fact that referring the matter to DVO by learned AO is incorrect in law and report obtained in this respect cannot form basis of addition u/s 69C of the Act. 2. Facts giving rise to the present appeal are that the assessee filed its return of income on 29.11.2006, declaring Nil income. The case was selected for scrutiny and a notice u/s 143(2) of the Income-tax Act, 1961, hereinafter referred to as the Act , was issued. In response thereto the authorized representative of the assessee attended the proceedings. The Assessing Officer noticed that during the year under consideration the assessee had purchased three tracts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 Revenue has not brought on record that mentioning of Section 69C was on account of any typographical error. It is also clear from the assessment order that the Assessing Officer ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther 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(1)(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 contrary to the spirit of the Act. Reliance placed by the learned counsel for the assessee on the judgment of the Hon ble Delhi high Court, rendered in the case of CIT Vs. Aar Pee Apartme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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