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Income Tax Appellate Tribunal, DELHI BENCHES : F : NEW DELHI
Before: SHRI R.S. SYAL & SMT BEENA PILLAI
CO No.02/Del/2013 ORDER PER R.S. SYAL, VP: This appeal filed by the Revenue and the Cross Objection by the assessee arise out of the order passed by the CIT(A) on 17.03.2011 in relation to the assessment year 2007-08. The following effective ground has been raised by the Revenue in its appeal:-
“1. On the facts and circumstances of the case, and in law, ld.CIT(A) has erred in directing the A.O. to re-verify/reconcile the contract receipts as per TDS certificates vis-à-vis the new documents/submission to be made by the assessee and to allow the claim of the assessee ignoring the following facts: a. That the directions given by the Ld.CIT(A) amount to set aside the issue to the file of Assessing Officer. b. That the Ld.CIT(A) does not have powers of setting aside after amendment in section 251 from 01.06.2001. c. That the Ld.CIT(A) has overlooked the procedure of appeal prescribed u/s 250(4) of the Income-tax Act, 1961.”
We have heard both the sides and perused the relevant material on record. It is noticed that the ld.CIT(A) restored the issue in question to the Assessing Officer with a direction to reconcile the assessee’s claim.
Section 251 dealing with the powers of the Commissioner (Appeals) has, by the Finance Act, 2001, w.e.f. 01.06.2001, omitted the portion beginning with the words ‘or he may set aside’ and ending with the 2
CO No.02/Del/2013 words ‘on the basis of such fresh assessment’ from clause (a) of sub- section (1). In view of this statutory amendment, now it is no more permissible to the CIT(A) to remit the matter to the Assessing Officer for a fresh determination of the issue. He is supposed to decide an issue raised in appeal by himself. Since the ld. CIT(A) has violated the prescription of section 251(1), we cannot uphold the same. The impugned order is set aside to this extent and the matter is restored to his file for deciding this issue at his own. Needless to say, the assessee will be allowed a reasonable opportunity of being heard in this regard.
The first ground of the assessee’s Cross Objection is general which does not require any adjudication.
Ground No.2 is against the restoration by the ld.CIT(A) and not deleting the addition of Rs.55,66,892/-, being, the difference between the job work receipts as per TDS certificates and those shown in the Profit & Loss Account. Since we have set aside the order passed by the ld. CIT(A) on this issue while dealing with the departmental appeal, the CO No.02/Del/2013 ground taken by the assessee in its Cross Objection has become infructuous.
The only other ground which survives in this Cross Objection is against the confirmation of disallowance u/s 40(a)(ia) amounting to Rs.40,37,872/-.
The facts apropos this issue are that the assessee made a payment of Rs.40,37,872/- in respect of job charges without deduction of tax at source u/s 194C of the Act. On being called upon to explain as to why no disallowance be made u/s 40(a)(ia), the assessee did not submit any proper reply. The only plea taken was that he was unaware of the provisions and was not guided by his counsel. Invoking the provisions of section 40(a)(ia), the Assessing Officer disallowed Rs.40.37 lac. The ld. CIT(A) countenanced such disallowance by observing that the assessee did not furnish any details.
Having heard both the sides and perused the relevant material on record, we find that the assessee did furnish details before the ld. CIT(A), a copy of which is available from pages 53 onwards of the CO No.02/Del/2013 paper book. Since such details have not been examined by the ld.
CIT(A), we consider it expedient to set aside the impugned order on this score as well and remit the matter to him for fresh disposal as per law, after allowing a reasonable opportunity of being heard to the assessee.
In the result, the appeal filed by the Revenue is allowed for statistical purpose and the C.O. of the assessee is partly allowed for statistical purposes..
Order pronounced in the open court on 21st November, 2017.