2022 (4) TMI 967

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....e addition of Rs. 21,00,000 albeit under section 69B of the Act. The learned CIT(A) further erred in sustaining Section 69B of the Act for Section 69C of the Act applied by the Assessing officer while making the impugned addition. 1.1 The learned CIT(A) has erred both on facts and in law in not providing opportunity to the company when substituting section 69B of the Act for Section 69C of the Act, for sustaining the addition of Rs. 21,00,000 made by the assessing officer by applying Section 69C of the Act. 2 The learned Commissioner of Income Tax (Appeals) has erred both on facts and in law in not providing sufficient opportunity of being heard to the assessee company in re-characterizing the additions made by the learned....

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..... Aggrieved against this the assessee preferred appeal before the learned CIT(Appeals), who after considering the submissions dismissed the appeal. Aggrieved against this the assessee is in appeal before this Tribunal. 3. I have heard rival submissions, perused the material available on record and gone through the orders of authorities below. Undisputedly the facts of the present case are identical to the facts as in the case of M/s Toffee Agricultural Farms Pvt. Ltd. (ITA no. 4903/Del/2019 for A.Y. 2006-07). The parties have also adopted the same arguments. In the case of M/s Toffee Agricultural Farms Pvt. Ltd. (supra), vide order of even date, I have decided the issue against the revenue and deleted the addition by holding as under: ....

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.... 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 Sectio....