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TMI Blog2023 (7) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... im. CIT(A) ought to have verified himself or should have sought a Remand Report from AO in this regard. Therefore, considering the totality of facts, we hereby modify the order of Ld.CIT(A). AO is hereby, directed to delete the addition in respect of disallowance of exchange fluctuation loss. As the issue is squarely covered by the judgement of Woodward Governor India Private Limited [ 2009 (4) TMI 4 - SUPREME COURT ] Ground Nos. 4 to 4.1 raised by the assessee are allowed for statistical purposes. Disallowance of reversal of cenvat credit - We remit this issue to the file of AO for verification of correctness of the claim of the assessee that the amount in question is actual reversal of cenvat credit, if found correct, same may be deleted. Appeal of the assessee is partly allowed for statistical purposes. - ITA No. 8446/Del/2019 - - - Dated:- 14-7-2023 - Shri Kul Bharat, Judicial Member And Shri M Balaganesh, Accountant Member For the Appellant : S/Shri S.K.Agarwal, CA, Gopal Agarwal, CA And Shubham Gupta, CA For the Respondent : Shri Gurpreet Shah Singh, Sr. DR ORDER PER KUL BHARAT, JM : The present appeal filed by the assessee for the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment order on this issue, without concluding the matter, which is beyond the power of Learned CIT(A). Disallowance of foreign exchange fluctuation loss 4. On the facts, and circumstances of the case, and in law, the Learned CIT(A) has erred in upholding the addition/ disallowance made by Learned AO, treating the entire foreign exchange fluctuation loss amounting to INR 31, 39, 751 as unrealized/notional in nature, on the premise that the same represents marked to market losses on foreign exchange derivatives, being contingent in nature and hence, not allowable under section 37 of the Act. 4.1. On the facts, and circumstances of the case, and in law, the Learned CIT(A) has erred in giving direction to the AO for verification of the nature of foreign exchange loss incurred by the Appellant in the light of principles enunciated by the Hon'ble Supreme Court in the case of CIT vs. Woodward Governor India Private Limited (312 ITR 254) (2009), there by setting aside the assessment order on this issue, without concluding the matter, which is beyond the power of Learned CIT(A). 5. The appellant craves for leave to amend, vary, omit or substitute the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sustained. Further, in respect of issue regarding addition of Rs. 12,64,658/- was also restored to the AO for verification and decisions afresh. 5. Aggrieved against the order of Ld.CIT(A), the assessee has preferred the present appeal before the Tribunal. 6. Ground Nos.1 5 raised by the assessee are general in nature, needs no separate adjudication. 7. Ground Nos. 2 to 2.3 raised by the assessee are against the confirming of adhoc disallowance made by the AO @ 10% of total expenses. During the course of assessment proceedings, the assessee also filed an application seeking admission of additional evidences under Rule 29 31 of the Income Tax (Appellate Tribunal) Rules, 1963. Ld. Counsel for the assessee reiterated the submissions. 8. Apropos to Grounds of appeal, Ld. Sr. DR for the Revenue opposed these submissions and submitted that the application of the assessee deserves to be dismissed on account of the fact that he could have filed these evidences before the assessing authority. 9. We have heard Ld. Authorized Representatives of the parties and perused the material available on record. We find that the assessee in application has stated as under:- The A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now available with the Appellant and are germane to dispense justice by your Honours to the Appellant, it is prayed that these documents be admitted as evidence by your Honours so that natural justice is meted out to the Appellant. The Appellant trusts that the request shall merit sympathetic consideration and be acceded to. In case your Honours require any further clarifications/ information, we shall be pleased to provide the same. 10. It is not in dispute that the impugned addition has been made on the basis that the assessee failed to furnish the supporting evidences. Considering the fact that these evidences goes to the root of the issue, therefore, we allow the application of the assessee and admit these evidences. Upon admission of the additional evidences, parties have agreed that the issue may be restored to the file of the AO for fresh adjudication. The impugned order is hereby set aside and the AO would verify the correctness of the claim of the assessee and decide the issue afresh after giving adequate opportunity of hearing to the assessee. Thus, Ground Nos. 2 2.3 raised by the assessee are allowed for statistical purposes. 11. Apropos to Ground Nos. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s directed to ascertain the correctness of the claim of the appellant and allow it after due verification if found to be correct and in tandem with the provisions of the statute. Result Grounds of Appeal 8 and 9 are allowed for statistical purposes. 14. From the above, it is clear that the issues have been restored to the file of AO. The powers of Ld.CIT(A) is embodied in section 251 of the Act, same is reproduced herein below for the sake of clarity:- Powers of the [Joint Commissioner (Appeals) or the] Commissioner (Appeals). 251. (1) In disposing of an appeal, the Commissioner (Appeals) shall have the following powers (a) in an appeal against an order of assessment, he may confirm, reduce, enhance or annul the assessment; (aa) in an appeal against the order of assessment in respect of which the proceeding before the Settlement Commission abates under section 245HA, he may, after taking into consideration all the material and other information produced by the assessee before, or the results of the inquiry held or evidence recorded by, the Settlement Commission, in the course of the proceeding before it and such other material as may be brought o ..... 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