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Facts
The revenue appealed against the CIT(A)'s order. The assessee filed an original return and later a revised return, which the AO did not consider. The CIT(A) directed the AO to accept the revised return and pass a fresh assessment order.
Held
The Tribunal noted that while accepting a revised return was permissible, the CIT(A) did not have the power to direct a fresh assessment under Section 251 of the Act. A subsequent order by the Coordinate Bench quashed the CIT(A)'s initial order.
Key Issues
Whether the CIT(A) had the power to direct a de novo assessment order by accepting a revised return, and the impact of a subsequent order quashing the initial CIT(A) order on the present appeal.
Sections Cited
250, 143(3), 251, 143(3)/251
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “B” BENCH KOLKATA
Before: SHRI GEORGE MATHAN & SHRI SANJAY AWASTHI
Date of Hearing : 22.05.2025 Date of Pronouncement : 22.05.2025 O R D E R Per Bench :
The captioned appeal filed by the revenue is against the order of the Ld. Commissioner of Income Tax (Appeals) - 22, Kolkata (in short “CIT(A) vide Appeal No. 175/CIT(A)-22/2004-05/15-16/Kol dated 30.06.2017 passed u/s. 250 of the Income Tax Act, 1961 (hereinafter referred to as the “Act”) for the assessment year 2004-05.
Shri J. P. Khaitan, Sr. Counsel & Shri P. Jhunjhunwala, Advocate represented on behalf of the assessee and Shri Prakash Nath Barnwal, CIT, DR appeared on behalf of the revenue.
West Bengal Electronics Industry Development Corporation Ltd. AY: 2004-05 3. It was submitted by the Ld. CIT, DR that the assessee had filed its original return on 31.10.2004. The said return was processed and the assessment order passed u/s. 143(3) on 18.12.2006. it was the submission that in the meantime the assessee had filed a revised return on 31.03.2006. In the assessment order, the Assessing Officer did not take cognizance of the revised return filed by the assessee. On appeal before the Ld. CIT(A) an order came to be passed on 12.12.2008 wherein the Ld. CIT(A) directed the Assessing Officer to accept the revised return filed and he set aside the issues to the Assessing Officer to pass a fresh assessment order based on such revised return. Against the said order of the Ld. CIT(A), the assessee had preferred an appeal to the Tribunal in and an order came to be passed on 31.07.2014 wherein the Coordinate Bench of this Tribunal has held as follows: “This appeal by assessee is arising out of order of CIT(A)-I, Kolkata in Appeal No. 199/CIT(A)-I/Cir-I106-07 dated 12.02.2008. Assessment was framed by DCIT, Circle-I, Kolkata u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as "the Act") for Assessment Year 2004-05 vide his order dated 18.12.2006.
2. At the outset, it is seen that the CIT(A) has not adjudicated the issue and set aside the assessment for framing fresh assessment on the revised return. As far as accepting the revised return, we have no issue with the order of CIT(A) but there is no power vested with CIT(A) u/s. 251 of the Act directing the AO to pass fresh assessment order. In our view, the setting aside by CIT(A) is not as per law. Hence, as far as the order of CIT(A) setting aside the assessment is quashed and this appeal is set aside to the file of the CIT(A) to pass a speaking order on merits after providing reasonable opportunity of being heard to the assessee. Appeal of assessee is allowed for statistical purposes.
In the result, the appeal of assessee is allowed for statistical purposes.”
It was the submission that as a consequence to the order of the Ld. CIT(A) dated 12.02.2008 directing de novo assessment by considering the revised return, the Assessing Officer had passed an order dated 31.12.2008. The Coordinate Bench of this Tribunal in the meantime, had held that the setting aside of the order by Ld. CIT(A) was not as per law. However, the Tribunal further went on to hold that there was no error in the finding of the Ld. CIT(A) in regard to the accepting of the revised return filed by the assessee. It was the submission that against the subsequent West Bengal Electronics Industry Development Corporation Ltd. AY: 2004-05 order passed by the Assessing Officer giving effect to the order of the Ld. CIT(A) on 31.12.2008 the assessee had filed an appeal to the Ld. CIT(A) and the Ld. CIT(A) had adjudicated on the said order on 30.06.2017. It was the submission that the impugned appeal is against the order of the Ld. CIT(A) dated 30.06.2017 adjudicating on the order u/s. 143(3) r.w.s. 251 of the Act on 31.12.2008 wherein relief has also been granted to the assessee. It was fairly submitted by the Ld. CIT, DR that as the order of the Ld. CIT(A) dated 12.02.2008 had been set aside by the Coordinate Bench of this Tribunal vide its order dated 31.07.2014, the assessment order passed on 31.12.2008 itself becomes infructuous, in so far as the order of the Ld. CIT(A) dated 12.02.2008 has been reversed and the issues are now pending before the Ld. CIT(A).
In reply, the Ld. Sr. Advocate appearing on behalf of the assessee submitted that as the Ld. CIT(A) has accepted the contention of the revised return being valid in his order dated 12.02.2008 and had remanded the issue back to Ld. Assessing Officer, who passed a consequential order dated 13.12.2008 u/s. 143(3)/251 of the Act. It was the submission that no order giving effect to order of the Coordinate Bench of this Tribunal in dated 31.07.2014 has been received by the assessee. It was also the submission by the Ld. DR that no such order was available with the Assessing Officer. The Ld. CIT, DR has also submitted that there is no information as to what has happened after the order of the coordinate Bench of this Tribunal in assessee’s case in dated 31.07.2014 was passed.
We have considered the rival submissions. Admittedly, the present appeal is against the order of the Ld. CIT(A) dated 30.06.2017. The said order of the Ld. CIT(A) is a consequence of an order of the Assessing Officer passed u/s. 143(3) r.w.s. 251 of the Act on 31.12.2008. This order of the Assessing Officer in turn is the consequence of an order of the Ld. CIT(A) dated 12.02.2008, which in itself has been quashed by the Coordinate