Hari Mohan Sharma & Madan Mohan Sharma v. ACIT (2018) 71 ITR 18 (Delhi) (Trib.)

S. 251 : Appeal-Commissioner (Appeals)–Powers-Capital gains-New source of income- Commissioner not competent to enhance an assessment on point not all considered by AO or raised by assessee-CIT(A) is also not entitled to enhance assessment holding sale itself was bogus and treat income u/s. 68 [S. 54F, 68]

The assessee is an individual deriving income from the house property. He disclosed capital gains on sale of property and claimed exemption u/s. 54F of the Act, for the property purchased. The AO denied claim. On appeal, the  CIT(A) enhanced the income of the assessee and added the sum to the total income of the assessee u/s. 68 of the Act, on the allegations that no sale had taken place. On appeal by the Assessee before the Tribunal, the Tribunal held that the only issue that was considered and discussed by the  AO was that if eligibility of claim u/s. 54F of the Act. The Tribunal further observed that, the  AO was satisfied with the computation of capital gains and that the sales consideration received by the assessee was never disputed. Accordingly, the  CIT(A) could not have never questioned the genuineness of sale consideration and concluded that no capital gains arose to the assessee at all and that the income of the assessee was taxable u/s. 68 of the Act. Accordingly, it was need that the action of Ld. CIT(A) fall within preview of the 147 and not u/s. 251(1)(a) of the Act.  Therefore, it was held that the CIT(A) was not competent to enhance the assessment taking in account of an income which was not considered by the  AO at all. Since, the  CIT(A) had exceeded his jurisdiction in enhancing the income of assessee by considering an altogether an new source of income thus impugned additions u/s. 68 were deleted. (AY. 2014-15) (ITA No. 2953/Del/2018 & 2954/Del/2018 dt 31-1 2019 )