Shri Raghunath Devchand Patil, Surat V. The ACIT, Circle-2, Surat

ITA 2752/AHD/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0252 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 20-07-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 30-09-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D P GUPTA
• Assessee Lawyers: S N SOPARAKAR
• Keywords: Reopening of assessment; Business income; Income from undisclosed sources; Onus to prove; Bonafide mistake; Reassessment proceedings
• Section: 143(3); 147; 144

Judgement Text

I.T.A. NO. 2752/AHD/2015 ASSESSMENT YEAR: 2011 - 12 PAGE 1 OF 7 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR AM AND S S GODARA JM ] I.T.A. NO. 2752/AHD/2015 ASSESSMENT YEAR: 2011 - 12 RAGHUNATH D PATIL ...... . .APPELLANT T 12, 3 RD FLOOR, SILICON SHOPPERS MAIN ROAD, UDHANA, SURAT 394 210 [PAN: AAVPP7289H] VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 2, SURAT .. . . RESPONDENT APPEARANCES BY: S N SOPARAKAR FOR THE APPELLANT D P GUPTA FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 20/ 0 7/2016 D ATE OF PRONOUNC ING THE ORDER : 19 /10 /2016 O R D E R PER PRAMOD KUMAR , AM : [1] THIS APPEAL, FILED BY THE ASSESSEE, IS DIRECTED AGAINST THE ORDER DATED 12 TH AUGUST 2015 PASSED BY THE LEARNED CIT(A) IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INC OME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2011 - 12. [2] IN THE FIRST THREE GROUNDS OF APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING GRIEVANCES: 1. LEARNED CIT(A) ERRED IN LAW AND ON FACT IN CONFIRMING ACTION OF THE AO REJECTING BOOKS OF ACCOUNTS UNDER S ECTION 145(3) OF THE ACT. LEARNED CIT(A) OUGHT NOT TO HAVE CONFIRMED THE REJECTION OF AUDITED BOOKS OF ACCOUNTS BY AO WITHOUT ISSUANCE OF SHOW CAUSE NOTICE POINTING OUT ANY DEFECTS IN THE BOOKS. 2. LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING TH E ADDITION OF RS 14,14,26,914 UNACCOUNTED INCOME BASED ON MISMATCH IN CONTRACT RECEIPTS AS PER FORM # 26AS AGAINST CONTRACT RECEIPTS SHOWN IN THE AUDITED ACCOUNTS. LEARNED CIT(A) OUGHT TO HAVE HELD THAT ONLY PROFIT I.T.A. NO. 2752/AHD/2015 ASSESSMENT YEAR: 2011 - 12 PAGE 2 OF 7 EARNED FROM SUCH UNACCOUNTED RECEIPTS REQ UIRES TO BE TAXED AND NOT WHOLE OF THE GROSS RECEIPTS. 3. LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING DENIAL OF EXPENSES BY AO ON DISCREPANCIES IN SIGNATURES ON WAGES REGISTER OR NON DEDUCTION OF PPF/ESI IS NOT CONCLUSIVE OF NON HIRING OF STAFF . [3] SO FAR THESE TWO GRIEVANCES ARE CONCERNED, LEARNED SENIOR COUNSEL FOR THE ASSESSEE HAS A LIMITED POINT TO MAKE, AND THAT POINT IS ON THE QUESTION AS TO WHAT NEEDS TO BE ADDED TO INCOME - ENTIRE SUPPRESSED BUSINESS RECEIPTS OR THE PROFIT ELEMENT EMBE DDED IN THESE RECEIPTS. [4] TO ADJUDICATE ON THE POINT RAISED BY THE LEARNED COUNSEL, ONLY A FEW MATERIAL POINTS NEED TO BE TAKEN NOTE OF. THE ASSESSEE BEFORE US IS ENGAGED IN THE BUSINESS OF PROVIDING SECURITY SERVICES. DURING THE COURSE OF SCRUTINY ASS ESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT THERE IS A MISMATCH IN THE RECEIPTS FOR SECURITY SERVICES, AS PER INFORMATION AVAILABLE ON 26AS REPORT GENERATED FROM THE INFORMATION ON THE RECORDS OF THE INCOME TAX DEPARTMENT VIS - - VIS THE RECEIPTS D ISCLOSED IN THE FINANCIAL STATEMENTS SUBMITTED BY THE ASSESSEE. WHILE THE FIGURE AS PER FORM 26 AS WAS RS 21,63,40,230, THE RECEIPTS DISCLOSED BY THE ASSESSEE WERE ONLY RS 7,49,13,316. WHEN THE ASSESSEE WAS CONFRONTED WITH THIS DISCREPANCY, THE ASSESSEE, INTER ALIA, SUBMITTED THAT HE IS NOT SO LITERATE A PERSON, THAT THERE WAS AN UNINTENTIONAL MISTAKE ON THE PART OF THE ASSESSEE OF NOT RECORDING ALL CONTRACT RECEIPTS AND THAT HE HAS NOT RECORDED ALL THE EXPENSES LIKE WAGES FOR GENERATING SUCH CONTRACT RECEIPTS . NOT SATISFIED WITH THE CORRECTNESS OF THE BOOKS OF ACCOUNTS OR WITH THE EVIDENCES FOR EXPENSES INCURRED TO GENERATE UNACCOUNTED RECEIPTS, THE ASSESSING OFFICER DECLINED TO ACCEPT THE EXPLANATION OF THE ASSESSEE AND PROCEEDED TO ADD AN AMOUNT OF RS 14,14,26,914 TO THE PROFITS OF THE ASSESSEE AS PER INCOME TAX RETURN. AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) BUT WITHOUT ANY SUCCESS. LEARNED CIT(A) NOTED THAT THE ASSESSEE HAS NOT PRODUCED SUFFICIENT EVIDENCES IN SUPPORT O F CLAIM OF EXPENDITURE. HE NOTED THAT THE APPELLANT WAS ASKED TO FURNISH THE PROOF REGARDING THE DEDUCTION OF PF/ESI TO SUBSTANTIATE THE CLAIM REGARDING PAYMENT OF WAGES TO THE SECURITY GUARDS , THAT NO PROOF REGARDING THE PAYMENT OF SERVICE TAX WAS ALS O PROVIDED , THAT THE APPELLANT FAILED TO PRODUCE THE BOOKS OF ACCOUNTS IN SUPPORT OF HIS CONTENTIONS AND THAT THE BURDEN OF PROOF WAS ON THE APPELLANT TO SHOW THAT THE EXPENSES CLAIMED BY HIM ARE FULLY SUPPORTED WITH PROPER BOOKS OF ACCOUNTS AND BILLS AND VOUCHERS AND THIS ONUS REMAINED TO BE DISCHARGED. LEARNED CIT(A) CONCLUDED THAT IN ABSENCE OF ANY EVIDENCE REGARDING THE CLAIM OF EXPENSES, THE CONTENTION OF THE APPELLANT IS REJECTED . THE ASSESSEE IS AGGRIEVED AND IS IN FURTHER APPEAL BEFORE US. [5] WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. [6] AS LEARNED SENIOR COUNSEL RIGHTLY POINTS OUT, IT IS A SETTLED LEGAL POSITION THAT IN THE CASE OF SUPPRESSED RECEIPTS BEING UNEARTHED IN THE CASE OF AN ASSESSEE WHAT IS TO BE NORMALLY BROUGHT TO TAX IS THE INCOME EMBEDDED IN SUCH SUPPRESSED RECEIPTS. I.T.A. NO. 2752/AHD/2015 ASSESSMENT YEAR: 2011 - 12 PAGE 3 OF 7 IN THE CASE OF DCIT VS PANNA CORPORATION (ITA NO. 323 OF 2000; JUDGMENT DATED 16 TH JUNE 2012), HON B LE JURISDICTIONAL HIGH COURT SUMMED UP THE LEGAL POSITION BY CONCLUDING, AFTER AN ELABORATE SURVEY OF JUDICIAL PRECEDENTS ON THE ISSUES, THAT IT CAN, THUS, BE SEEN THAT CONSISTENTLY, THIS COURT AND SOME OTHER COURTS HAVE BEEN FOLLOWING THE PRINCIPLE THAT EVEN UPON DETECTION OF ON MONEY RECEIPT OR UNACCOUNTED CASH RECEIPT, WHAT CAN BE BROUGHT TO TAX IS THE PROFIT EMBEDDED IN SUCH RECEIPTS AND NOT THE ENTIRE RECEIPTS THEMSELVES. IF THAT BE THE LEGAL POSITION, WHAT SHOULD BE ESTIMATED AS A REASONABLE PROFIT OUT OF SUCH RECEIPTS, MUST BEAR AN ELEMENT OF ESTIMATION . VIEWED THUS, ADDITION OF SUPPRESSED RECEIPTS, IN ENTIRETY AND ON GROSS BASIS, IS UNSUSTAINABLE IN LAW. IT IS ONLY THE PROFIT ELEMENT, EVEN ON ESTIMATE BASIS, WHICH CAN BE BROUGHT TO TAX. AS AN ANT ITHESIS OF THIS APPROACH, IN THE PRESENT CASE, HOWEVER, THE AUTHORITIES BELOW HAVE HELD THAT, IN THE ABSENCE OF CONCLUSIVE EVIDENCE ABOUT EXPENSES HAVING BEEN INCURRED, ENTIRE SUPPRESSED RECEIPTS ARE TO BE BROUGHT TO TAX. THE STAND OF THE AUTHORITIES BELO W, THEREFORE, DOES NOT MERIT OUR APPROVAL. [7] IN VIEW OF THE ABOVE DISCUSSIONS, IN OUR CONSIDERED VIEW, THE RIGHT COURSE OF ACTION WILL BE TO REMIT THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO BRING TO TAX, ON A FAIR AND REASONABLE BASIS, ESTIMATED INCOME COMPONENT ON THE SUPPRESSED RECEIPTS AMOUNTING TO RS 14,14,26,914. WE ORDER ACCORDINGLY. AS WE DO SO, HOWEVER, WE REFRAIN FROM MAKING ANY OBSERVATIONS ON AS TO WHAT SHOULD BE THE REASONABLE PROFIT ELEMENT IN THESE RECEIPTS. LEARNED COUNSEL DID URGE US TO ADOPT THE INCOME ESTIMATION ON THE BASIS OF PROFITS DISCLOSED BY THE ASSESSEE IN THE PRECEDING YEAR, BUT GIVEN THE ADMITTED TRACK RECORD OF THE ASSESSEE SO FAR HIS LACK OF TRUTHFULNESS IN DECLARING INCOME IN CONCERNED - WHETHER BY DE LIBERATE DESIGN OR WHETHER, AS CLAIMED BY THE ASSESSEE, INADVERTENTLY, IT WOULD INDEED TO UNFAIR TO ADOPT SUCH FIGURES. AS TO WHAT SHOULD BE THE ESTIMATED PROFIT ELEMENT IS AN OPEN ISSUE AND THE ASSESSEE CAN PRESENT HIS CASE, REGARDING QUANTIFICATION, BEFO RE THE ASSESSING OFFICER WHO WILL TAKE CALL ON THE SAME IN A FAIR AND REASONABLE MANNER, IN ACCORDANCE WITH THE LAW AND BY WAY OF A SPEAKING ORDER. ORDERED ACCORDINGLY. [8] GROUND NO. 1, 2 AND 3 ARE THUS ALLOWED FOR STATISTICAL PURPOSES IN THE TERMS INDICA TED ABOVE. [9] IN GROUND NO. 4, THE ASSESSEE HAS RAISED THE FOLLOWING GRIEVANCE: LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN DIRECTING THE AO TO REOPEN THE ASSESSMENTS OF EARLIER AND SUBSEQUENT YEARS UNDER SECTION 147 TO BRING THE UNDISCLOSED RECEIPTS/ I NCOME OF MISMATCHED CONTRACT RECEIPTS TO TAX. LEARNED CIT(A) OUGHT NOT TO HAVE ISSUED SUCH DIRECTIONS SURPASSING HIS JURISDICTION. [10] SO FAR AS THIS GRIEVANCE OF THE ASSESSEE IS CONCERNED, IT IS SUFFICIENT TO TAKE NOTE OF THE FACT THAT WHILE DISMISSING THE APPEAL OF THE ASSESSEE FOR THE PRESENT YEAR, LEARNED CIT(A) OBSERVED AS FOLLOWS: IN THE RESULT, THIS APPEAL IS DISMISSED WITH THE DIRECTION UNDER SECTION 150(1) OF THE ACT TO REOPEN THE ASSESSMENTS UNDER SECTIONS 147 R.W.S. I.T.A. NO. 2752/AHD/2015 ASSESSMENT YEAR: 2011 - 12 PAGE 4 OF 7 148 OF THE ACT FOR THE AS SESSMENT YEARS 2008 - 09, 2009 - 10, 2010 - 11, 2012 - 13 AND 2013 - 14 FOR THE RELEVANT ASSESSMENT YEARS AND BRING THE UNDISCLOSED RECEIPTS/INCOME TO TAX . [11] THE QUESTION THAT REALLY CALLS FOR OUR ADJUDICATION IS WHETHER THE LEARNED CIT(A) HAD THE POWERS, UNDER SECTION 150(1), TO DIRECT REOPENING OF THE ASSESSMENT FOR THE OTHER YEARS. [12] LET US BEGIN BY TAKING A LOOK AT THE SCHEME OF SECTION 150, WHICH PROVIDES AS FOLLOWS: PROVISION FOR CASES WHERE ASSESSMENT IS IN PURSUANCE OF AN ORDER ON APPEAL, ETC. 150. (1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 149, THE NOTICE UNDER SECTION 148 MAY BE ISSUED AT ANY TIME FOR THE PURPOSE OF MAKING AN ASSESSMENT OR REASSESSMENT OR RECOMPUTATION IN CONSEQ UENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINE D IN AN ORDER PASSED BY ANY AUTHORITY IN ANY PROCEEDING UNDER THIS ACT BY WAY OF APPEAL, REFERENCE OR REVISION OR BY A COURT IN ANY PROCEEDING UNDER ANY OTHER LAW (2) THE PROVISIONS OF SUB - SECTION (1) SHALL NOT APPLY IN ANY CASE WHERE ANY SUCH ASSESSMENT, REASSESSMENT OR RECOMPUTATION AS IS REFERRED TO IN THAT SUB - SECTION RELATES TO AN ASSESSMENT YEAR IN RESPECT OF WHICH AN ASSESSMENT, REASSESSMENT OR RECOMPUTATION COULD NOT HAVE BEEN MADE AT THE TIME THE ORDER WHICH WAS THE SUBJECT - MATTER OF THE APPEAL, R EFERENCE OR REVISION, AS THE CASE MAY BE, WAS MADE BY REASON OF ANY OTHER PROVISION LIMITING THE TIME WITHIN WHICH ANY ACTION FOR ASSESSMENT, REASSESSMENT OR RECOMPUTATION MAY BE TAKEN . [13] WHILE WE WILL DEAL WITH THE SCOPE OF SECTION 150(2), AND THE OV ERALL SCHEME OF THIS SECTION, A LITTLE LATER, EVEN A CURSORY LOOK AT SECTION 150(1) INDICATES THAT IT CAN BE TRIGGERED ONLY TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER PASSED DURING, AMONGST OTHER THINGS, APPELLATE PROCEEDINGS. [14 ] THE EXPRESSION TO GIVE EFFECT TO ANY FINDING OR DIRECTIONS ALSO FINDS PLACE IN SECTION 153(3) WHICH, INTER ALIA, PROVIDES THAT THE TIME LIMITS SET OUT IN SECTION 153 SHALL NOT APPLY TO THE . ASSESSMENTS, REASSESSMENTS AND RECOMPUTATIONS WHICH MAY MA DE ON THE ASSESSEE OR ANY PERSON IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER , UNDER SECTIONS 250, 254, 260, 262, 263 OR 264 OR IN AN ORDER OF ANY COURT IN A PROCEEDING OTHERWISE THAN BY WAY OF APPE AL OR REFERENCE U NDER THIS ACT . IT WAS IN THIS CONTEXT THAT THE EXPRESSION FINDINGS OR DIRECTIONS CAME UP FOR CONSIDERATION BEFORE HON BLE SUPREME COURT IN THE CASE OF RAJINDER NATH VS CIT [(1979) 120 ITR 14 (SC)] . WHILE DEALING WITH THE CONNOTATIONS OF THIS EXPRESSION, UNDER THE SCHEME OF SECTION 153(3) WHICH IS IN PARI I.T.A. NO. 2752/AHD/2015 ASSESSMENT YEAR: 2011 - 12 PAGE 5 OF 7 MATERIA WITH THE SCHEME OF SECTION 150(1), HON BLE SUPREME COURT HAS OBSERVED AS FOLLOWS: 7. THE EXPRESSIONS 'FINDING' AND 'DIRECTION' ARE LIMITED IN MEANING. A FINDING GIVEN IN AN APPEAL, REVISION OR RE FERENCE ARISING OUT OF AN ASSESSMENT MUST BE A FINDING NECESSARY FOR THE DISPOSAL OF THE PARTICULAR CASE, THAT IS TO SAY, IN RESPECT OF THE PARTICULAR ASSESSEE AND IN RELATION TO THE PARTICULAR ASSESSMENT YEAR. TO BE A NECESSARY FINDING, IT MUST BE DIRECTL Y INVOLVED IN THE DISPOSAL OF THE CASE. IT IS POSSIBLE IN CERTAIN CASES THAT IN ORDER TO RENDER A FINDING IN RESPECT OF A, A FINDING IN RESPECT OF B MAY BE CALLED FOR. FOR INSTANCE, WHERE THE FACTS SHOW THAT THE INCOME CAN BELONG EITHER TO A OR B AND NO ON E ELSE, A FINDING THAT IT BELONGS TO B OR DOES NOT BELONG TO B WOULD BE DETERMINATIVE OF THE ISSUE WHETHER IT CAN BE TAXED AS A'S INCOME. A FINDING RESPECTING B IS INTIMATELY INVOLVED AS A STEP IN THE PROCESS OF REACHING THE ULTIMATE FINDING RESPECTING A. IF, HOWEVER, THE FINDING AS TO A'S LIABILITY CAN BE DIRECTLY ARRIVED AT WITHOUT NECESSITATING A FINDING IN RESPECT OF B. THEN A FINDING MADE IN RESPECT OF B IS AN INCIDENTAL FINDING ONLY. IT IS NOT A FINDING NECESSARY FOR THE DISPOSAL OF THE CASE PERTAININ G TO A. THE SAME PRINCIPLES SEEM TO APPLY WHEN THE QUESTION IS WHETHER THE INCOME UNDER ENQUIRY IS TAXABLE IN THE ASSESSMENT YEAR UNDER CONS IDERATION OR ANY OTHER ASSESSMENT YEAR. AS REGARDS THE EXPRESSION 'DIRECTION' IN S. 153(3)(II) OF THE ACT, IT IS NOW WELL SETTLED THAT IT MUST BE AN EXPRESS DIRECTION NECESSARY FOR THE DISPOSAL OF THE CASE BEFORE THE AUTHORITY OR COURT. IT MUST ALSO BE A DIRECTION WHICH THE AUTHORITY OR COURT IS EMPOWERED TO GIVE WHILE DECIDING THE CASE BEFORE IT. THE EXPRESSIONS 'FINDI NG' AND 'DIRECTION' IN S. 153(3)(II) OF THE ACT MUST BE ACCORDINGLY CONFINED. SEC. 153(3)(II) IS NOT A PROVISION ENLARGING THE JURISDICTION OF THE AUTHORITY OR COURT. IT IS A PROVISION WHICH MERELY RAISES THE BAR OF LIMITATION FOR MAKING AN ASSESSMENT ORDE R UNDER S. 143 OR S. 144 OR S. 147 : ITO VS. MURLIDHAR BHAGWAN DAS (1964) 52 ITR 335 (SC) : TC51R.2168 AND N.K.T. SIVALINGAM CHETTIAR VS. CIT (1967) 66 ITR 586 (SC) : TC51R.2042. THE QUESTION FORMULATED BY THE TRIBUNAL RAISES THE POINT WHETHER THE AAC COUL D CONVERT THE PROVISIONS OF S. 147(1) INTO THOSE OF S. 153(3)(II) OF THE ACT. IN VIEW OF S. 153(3)(II) DEALING WITH LIMITATION MERELY, IT IS NOT EASY TO APPRECIATE THE RELEVANCE OR VALIDITY OF THE POINT. [EMPHASIS SUPPLIED BY US NOW] [15] THE PRINCIPLE IS , THEREFORE, QUITE CLEAR AND UNAMBIGUOUS. THE FINDINGS OR DIRECTIONS WHICH CAN TRIGGER RELAXATION OF TIME LIMITS INVOLVED IN THE ASSESSMENT OR REASSESSMENT PROCESS MUST BE SUCH WHICH ARE, TO QUOTE THE WORDS OF HON BLE SUPREME COURT, NECESSARY FOR DISPOSAL OF CASE BEFORE THE AUTHORITY . IT IS, THEREFORE, NOT THE DESIRE TO PROTECT THE INTERESTS OF REVENUE BUT THE CALL OF JUDICIAL D UTY, IN THE PROCESS OF UPHOLDING THE MAJESTY OF LAW , WHICH CAN LEGITIMATELY RESULT IN THE FINDINGS OR DIRECTIONS FOR THE PURPOS E OF SECTION 153 AS ALSO FOR 150 . SECTION 150(2), WHICH IS AN INTEGRAL PART OF THE SCHEME OF SECTION 150 AND WHICH CARVES OUT AN EXCEPTION FROM THE POWERS CONFERRED UNDER SECTION 150(1), MAKES THIS ASPECT EVEN MORE ABUNDANTLY CLEAR. SECTION 150(2), IN SIMP LE WORDS, PROVIDES THAT THE POWERS UNDER SECTION 150(1) CANNOT BE EXERCISED IN RESPECT OF A N ASSESSMENT YEAR IN RESPECT OF WHICH AN ASSESSMENT, REASSESSMENT OR RECOMPUTATION COULD NOT HAVE BEEN MADE I.T.A. NO. 2752/AHD/2015 ASSESSMENT YEAR: 2011 - 12 PAGE 6 OF 7 AT THE POINT OF TIME WHEN THE ORDER IMPUGNED IN APPELLA TE OR REVISION PROCESS, WAS FRAMED. IN OTHER WORDS, IF A REASSESSMENT COULD NOT HAVE BEEN INITIATED AS ON THE DATE OF PASSING THE ASSESSMENT ORDER IN THIS CASE, SUCH AN ASSESSMENT CANNOT BE REOPENED EVEN AS A RESULT OF DIRECTIONS UNDER SECTION 150(1) . THI S RIDER ON THE PROVISIONS OF SECTION 150(1) SHOWS THAT , UNLIKE PLENARY OR UNFETTERED POWERS OF A STATUTORY AUTHORITY TO PROTECT THE INTERESTS OF THE REVENUE, THESE POWERS ARE INEXTRICABLY LINKED AND CONNECTED WITH THE SUBJECT MATTER OF APPELLATE OR REVISIO N ETC . AS NOTED BY HON BLE SUPREME COURT, IN RAJINDER NATH S CASE (SUPRA) , ASSESSMENT OF AN INCOME IN ASSESSMENT YEAR Y , WHICH CANNOT BE TAXED IN THE HANDS OF AN ASSESSEE IN ASSESSMENT YEAR X (I.E. THE YEAR OF ACTUAL ASSESSMENT) BECAUSE IT IS TAXABLE I N THE ASSESSMENT YEAR Y , IS TO BE TREATED AS AN ASSESSMENT AS A RESULT OF FINDING OR DIRECTION IN THE APPELLATE OR REVISION ORDER, BUT EVEN SUCH A REASSESSMENT CAN BE DONE ONLY WHEN THIS REASSESSMENT COULD HAVE BEEN DONE AT THE POINT OF TIME WHEN IMPUG NED ASSESSMENT WAS FRAMED. CLEARLY, THEREFORE, THE PROVISIONS OF SECTION 150(1) CAN COME TO THE RESCUE OF THE ASSESSING OFFICER ONLY WHEN THE ASSESSMENT OF AN INCOME WAS MADE IN THE WRONG ASSESSMENT YEAR WHEN ASSESSMENT IN THE RIGHT ASSESSMENT YEAR WAS PER MISSIBLE WHEN THE ASSESSMENT WAS ACTUALLY FRAMED. IT IS THIS KIND OF AN ERROR OF JUDGMENT WHICH IS SOUGHT TO BE PROTECTED BY SECTION 150(1). THE PROVISIONS OF SECTION 150 OR 153(3), SO FAR AS FINDINGS AND DIRECTIONS IN AN APPELLATE ORDER ARE CONCERNED, CA N ONLY COME TO THE RESCUE OF THE ASSESSING OFFICER ONLY WHEN SUCH FINDINGS ARE DIRECTIONS ARE WHOLLY INCIDENTAL TO, AND NECESSARY FOR, ADJUDICATION BY THE APPELLATE OR REVISION AUTHORITY OR THE COURT, RATHER THAN, AS PERHAPS PERCEIVED BY THE CIT(A) IN THE IMPUGNED ORDER, TO PROTECT THE INTERESTS OF THE REVENUE. AS NOTED BY HON BLE SUPREME COURT, IN THE CASE OF K M SHARMA VS INCOME TAX OFFICER [(2002) 254 ITR 772 (SC)], FISCAL STATUTE, MORE PARTICULARLY ON A PROVISION SUCH AS REGULATING THE PERIOD OF LIMITA TION, MUST RECEIVE A STRICT CONSTRUCTION . THE EXPRESSION FINDINGS OR DIRECTIONS CONTAINED IN AN ORDER HAVING BEEN SUBJECTED TO INTERPRETATION BY HON BLE SUPREME COURT, THOUGH IN THE CONTEXT OF SECTION 153(3) , CANNOT, THEREFORE, BE INTERPRETED IN A MANNE R SO AS TO GIVE PLENARY POWERS TO THE APPELLATE OR REVISION AUTHORITIES OR COURTS TO GIVE DIRECTIONS FOR REOPENING THE ASSESSMENT MERELY BECAUSE, IN THEIR OPINION, SOME INCOME, WHICH IS NOT SUBJECT MATTER OF ADJUDICATION BEFORE THEM, HAS ESCAPED ASSESSMENT . THERE ARE SEPARATE PROVISIONS TO DEAL WITH SUCH A SITUATION AND THE ACTION, IF PERMISSIBLE, MUST BE TAKEN WITHIN THE PARAMETERS OF THOSE STATUTORY PROVISIONS. [16] IN THE PRESENT CASE, THE INCOME, WHICH IS DIRECTED TO BE BROUGHT TO TAX BY REOPENING THE ASS ESSMENTS, IS NOT EVEN THE INCOME WHICH WAS SUBJECT MATTER OF APPEAL. WHAT IS SOUGHT TO BE TAXED BY THE DIRECTING REOPENING OF THE ASSESSMENTS IS SIMILAR INCOME WHICH MAY HAVE ESCAPED ASSESSMENT IN OTHER ASSESSMENT YEARS. THAT CANNOT BE, UNDER THE SCHEME OF THE ACT, SUBJECT MATTER OF CONCERN TO EVEN THE CIT(A). UNDOUBTEDLY, CIT(A) HAS POWERS CO - TERMINUS WITH THE ASSESSING OFFICER BUT THAT IS ONLY IN RESPECT OF THE ASSESSMENT YEAR WHICH HE IS IN SEISIN O F BECAUSE HE GETS THESE PLENARY POWERS BY THE VIRTUE OF BEING SEIZED OF THE APPEAL IN RESPECT OF THAT ASSESSMENT YEAR. IF AN INCOME IS BROUGHT TO TAX IN THE WRONG HANDS OR IN THE WRONG ASSESSMENT YEAR, UNDER THE SCHEME OF SECTION 150 AND 153(3), HE HAS THE POWERS TO RECTIFY THOSE LAPSES - OF COURSE, WITHIN THE LIMITATIONS OF THESE STATUTORY PROVISIONS. HOWEVER, WHEN AN INCOME IN RESPECT OF SOME OTHER ASSESSMENT YEAR REMAINS UNTAXED, AND SUCH AN INCOME IS NOT EVEN SUBJECT MATTER OF APPEAL BEFORE I.T.A. NO. 2752/AHD/2015 ASSESSMENT YEAR: 2011 - 12 PAGE 7 OF 7 THE CIT(A), THE REMEDY DOES NOT LIE WITH THE CIT(A). IN OUR HUMBLE U NDERSTANDING, IT IS FOR THE ASSESSING OFFICER TO INVOKE HIS POWERS UNDER SECTION 147 OR FOR THE COMMISSIONER TO EXERCISE HIS POWERS UNDER SECTION 263, BUT CIT(A) CANNOT SUPPLEMENT OR SUBSTITUTE FOR THEIR EFFORTS IN THIS RESPECT. HAVING SAID THAT, HOWEVER, WE MAY MAKE IT CLEAR THAT THE FACT THAT THE CIT(A) DID NOT HAVE POWERS TO ISSUE IMPUGNED DIRECTIONS TO REOPEN THE ASSESSMENT WOULD NOT PREJUDICE THE VALIDITY OF REOPENING OF ASSESSMENT IN CASE THE SAME IS OTHERWISE PERMISSIBLE UNDER THE SCHEME OF THE ACT. IN OTHER WORDS, WHILE WE UPHOLD THE PLEA OF THE ASSESSEE, SO FAR LEGAL CHALLENGE TO THE POWERS OF THE CIT(A) TO ISSUE IMPUGNED DIRECTIONS IS CONCERNED, WE DECLINE TO DEAL WITH CORRECTNESS OR OTHERWISE OF THE REASSESSMENT PROCEEDINGS, WHICH MAY HAVE BEEN IN ITIATED BY THE ASSESSING OFFICER, ON FACTS AND AS THE SAME ARE NOT BEFORE US. [17] GROUND NO. 4 IS THUS ALLOWED IN THE TERMS INDICATED ABOVE. [18] IN GROUND NO. 5, THE ASSESSEE HAS RAISED THE FOLLOWING GRIEVANCE: LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE BY AO OF THE EMPLOYEE S CONTRIBUTION TO PF/ESI OF RS 13,21,000 PAID BEFORE THE DUE DATE OF FILING RETURN. LEARNED CIT(A) OUGHT TO HAVE DELETED THE DISALLOWANCE. [19] HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PERUSED THE MATERIAL ON RECORD, WE FIND THAT THIS ISSUE IS NOW COVERED AGAINST THE ASSESSEE BY HON BLE JURISDICTIONAL HIGH COURT S JUDGMENT IN THE CASE OF CIT VS GUJARAT STATE ROAD TRANSPORT CORPORATION LTD [(2014) 366 ITR 170(GUJ)]. WE, THEREFORE, UPHOLD THE DISALLOW ANCE AND DECLINE TO INTERFERE IN THE MATTER. [20] GROUND NO. 5 IS THUS DISMISSED. [21] IN THE RESULT, THE APPEAL IS PARTLY ALLOWED IN THE TERMS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT TODAY ON 19 TH DAY OF OCTOBER, 2016 . SD/ - S D / - S S GODARA PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) DATED: 19 TH DAY OF OCTOBER , 2016. COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY O RDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD