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TMI Blog2023 (10) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion that the complete cash book statement clearly explains the source of cash deposit to the bank account of assessee, wherein the assessee has not only included cash receipts as salary and capital withdrawal from two partnership firms and a cash salary and has also reduced the amount of drawings for household expenses. The copy of return of income of wife of assessee and father of assessee co-jointly established that the other family members of assessee are also earning and contributing towards household expenses. Thus understanding the source of cash deposit during demonetization to the bank account of assessee is properly explained by the assessee by way of self speaking documentary evidence and explanation. Secondly, the AO has made addition u/s 69 of the Act which pertains to unexplained investments, whereas the assessee has not made any investment either in movable or any immovable property during the relevant period by way of using cash amount. CIT(A) has upheld the part addition without mentioning any charging section and impliedly adopting section 69 of the Act in the line of assessment order. Respectfully following the case of Sarika Jain [ 2017 (7) TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal of the assessee has been dismissed on 23.03.2022. The Ld. AR further submitted that thereafter the assessee came to know about the dismissal of the first quantum appeal by the Ld.CIT(A) on 22.02.2023 and immediately filed appeal before the Tribunal on 13.03.2023. Therefore, delay caused in filing the appeal before the Tribunal is bona fide delay which may kindly be condoned. 4. Replying to the above, the Ld. Sr. DR strongly opposed to the condonation of delay. He vehemently submitted that the affidavit of assessee has been deposed on 18.04.2023. There is no evidence showing non-receipt of first appellate order, the assessee is required to be diligent, vigilant but he proved to be a negligent, litigant and, therefore, there is no sufficient cause explaining the delay. Application seeking condonation may kindly be dismissed. However, he did not controvert that as per Form 35 the e-mail address of communication has been given as [email protected]. 5. On careful consideration of above submission, I am of the view that the delay caused in filing appeal before the Tribunal is bona fide delay due to the reasons stated above and beyond control of assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his father and his wife has sufficient income dividend funds which were accumulated and used for deposit to their joint home loan account. The Ld.AR also submitted that the AO has made addition u/s 69 of the Act which pertains to unexplained investment whereas in the present case the assessee has not made any unexplained investment but he made repayment of loan. Therefore, the view of judgment of Hon ble .the addition made and confirmed under irrelevant and incorrect charging section is not sustainable and part addition sustained by the Ld.CIT(A) cannot be held as valid being bad in law. 8. The Ld. AR further drawing our attention towards PB-II of assessee spread over 42 pages submitted that the assessee has filed confirm ledger account of partnership firms M/s Umang Beverages and M/s Mohan Oil Cattle Feed and Bihar Milk Foods Pvt. Ltd. showing cash withdrawal of capital and salary in cash and copies of the returns of income for AY 2017-18 of all three said entities showing that their Income Tax payee entities and confirming payment of salary as well as cash withdrawal of capital from both the said partnership firms. The Ld. AR submitted that in view of said confirmati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant period. Therefore, the authorities below were not correct in dismissing the explanation of the assessee in this regard. Copy of confirmation certificate issued by Smt. Shalini i.e. wife of assessee shows that she has categorically stated that out of total cash deposit Rs. 12,08,116/- was given to the assessee by her for deposit to the joint home loan account no.xxx889938. The copy of return of income available at page 27 shows that her returned income was Rs. 4,69,820/- which is also not in dispute. 12. In my considered opinion, undisputedly the impugned cash deposit was made by the assessee on her own and on behalf of her wife to their joint home loan account as repayment of home loan. Thus, I safely presumed that assessee has not made any investment for acquiring any movable or immovable property. Therefore, the allegation of unexplained investment cannot be made against the assessee invoking the charging section u/s 69 of the Act. From the relevant part of assessment order, I note that the AO has made addition by mentioning charging section as 69 of the Act and Ld.CIT(A) has also upheld the same without any change or without addressing the grievance of the assessee in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of CIT Vs. Union Tyres (1999) 240 ITR 556 (Del). Further reliance was placed on the judgment of the Hon ble Delhi High Court in the case of CIT Vs. Naresh Khattar (HUF) 261 ITR 664. He further placed reliance on the decision of Hon ble Allahabad High Court rendered in the case of Smt. Sarika Jain Vs. CIT (2017) 84 Taxmann.com 64 (All) to buttress the contention that the learned CIT(Appeals) was not justified in invoking the provisions of Section 69B when the Assessing Officer had invoked the provisions of Section 69C of the Act. Learned counsel also placed reliance on the decision of the Tribunal rendered in the case of Hari Mohan Sharma rendered in ITA No. 2953/Del/2018 to buttress the contention that the words enhance the assessment are confined to the assessment reached through a particular process. 4. The learned DR opposed the submissions and supported the orders of the authorities below. He submitted that merely because there was an error in writing Section 69C by the Assessing Officer, would not vitiate the entire proceedings. The Assessing Officer was dealing in substance with the subject matter relating to the investment made by the assessee in immovable propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned 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 of the Act, the learned CIT(Appeals) is empowered to make further 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 Apartments (P) Ltd. (supra), has held that from the reading of sub-section (1) of Section 142A, it is clear that legislature referred to the provisions of Section 69, 69A and 69B but specifically excluded 69C. The principle of casus omissus b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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