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TMI Blog2023 (6) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... U/s 69 is confirmed by Changing the section to section 69C of i. Tax Act as demand in the grounds of appeal by the assessee. While the assessee never raised any grounds of appeal for conversion of addition made by AO to section 69C instead of section 69. The Assessee only challenge the wrong and illegal addition U/s 69 of I. Tax Act as unexplained and undisclosed Investment. 2. That a legal question of law arise whether the action of CIT(A) justified for conversion of addition as made by AO under any wrong section which is challenge by the appellant by way of grounds of appeal. 3. That the Learned CIT(A) has not serious to disposed off the assessee ground no. 3 to 8 & 11 which are reproduced as under- I. That the action of AO to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith available books of accounts. VI. That the learned ITO framed the assessment order completely against the contents of the questionnaire cum show cause dt. 05.12.2017. The learned ITO has completely made up his mind and reached definite conclusion about the alleged guilt of the assessee. The assessment order which is not based on questionnaire cum show cause notice is wrong, illegal and void- ab-initio. VII. That the Id AO further erred on the facts of the case in ignoring the fact that the assessee earned commission income of Rs. 2,20,200.00 on which I. Tax TDS of Rs. 22,020.00 was deducted at source which was duly shown by the assessee in the records. That the appellant craves the leave to add, modify, amend or delete any of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... error in writing Sec. 69 by the AO, would not vitiates the entire proceedings. The Ld. DR also submitted that the AO was duly in substance with the subject matter relating to undisclosed investments and by mistake the AO stated Sec. 69 of the Act then the Ld.CIT(A) was right in confirming the addition u/s 69C of the Act by applying right section as the Ld. First Appellate Authority enjoys coterminous powers with the AO. Therefore, the legal contention of the assessee may kindly be dismissed being devoid of merits. 4. On careful consideration of submissions of both the sides, first of all I may point out that identical controversy was adjudicated by the Tribunal in the case of M/s Toffee Agricultural Farms P. Ltd. (supra) by holding as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to DVO u/s 142A for the purpose of Section 69C is not valid. 6. Now coming to the question regarding action of the learned CIT(Appeals) to treat the reference u/s 142 for the purpose of Section 69B, I find merit into the contention of the assessee that there is no power conferred upon the learned CIT(Appeals) to assess a particular item under different provision of the Act what the Assessing Officer had done without giving a specific notice to the assessee regarding such action. The Revenue has not brought any material to suggest that the assessee was put to notice by the learned CIT(Appeals) before taking such action. I am of the considered view that law does not permit for such change of provision of law. As per Section 250 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er u/s 69C as have been made u/s 69B is contrary to the law laid down by the Hon'bie Jurisdictional High Court. I, therefore, respectfully following the decision of the Hon'ble Jurisdictional High Court in the case of CIT Vs. Aar Pee Apartments (P) Ltd. (supra), the impugned order is therefore set aside. The addition made u/s 69C on the basis of the report of the DVO by the Assessing Officer deserves to be deleted. Hence, impugned addition is hereby deleted. Grounds of appeal taken by the assessee are allowed accordingly." 5. After careful consideration of rival submissions of both the sides and facts and circumstances of the present case coupled with proposition rendered by the Hon'ble Jurisdictional High Court of Delhi under identical c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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