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Income Tax Appellate Tribunal, MUMBAI BENCH “F”, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI RAJESH KUMAR
Per Rajesh Kumar, Accountant Member:
The present appeal has been preferred by the assessee against the order dated 25.10.2017 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2010-11.
The various grounds raised by the assessee are as under: “The Commissioner of Income Tax (Appeals)-16, Mumbai erred in: 1. not holding that the Appellant ought to be entitled to a deduction u/s 10AA as it had filed a form 56F before the CIT during the proceedings u/s 263 of the Act as well as with the Assessing officer during the proceedings thereafter.
2 SA No.103/M/2018 (Arising out of M/s. Fine Jewellery Manufacturing Ltd.
2. In not adjudicating on the additions made by merely holding that as the Appellant had not challenged the order u/s 263 no appeal would lie against the order giving effect to the directions of the CIT u/s 263. He erred in not appreciating that the CIT had set aside the addition to be done afresh on various issues. He also erred in not appreciating that the Appellant had not challenged the jurisdiction u/s 263 before him but only the additions made.
In not adjudicating that there was no adequate reason to consider a purchase of Rs. 4,050 as a bogus purchase and in reopening a completed assessment towards the same.
In not adjudicating that no disallowance was needed u/s 40a(i) for payments made to Thangam Jewels LLC as the same was not taxable in India. Without prejudice, in not adjudicating that even if a sum is disallowed u/s 40a(i) the same will have to be considered while granting deduction u/s 10AA.”
3. In ground no 2 the assessee has raised an issue that the ld CIT(A) has dismissed the appeal by not deciding the issues/additions reasoning that the assessee has not challenged the order passed under section 263 of the Act and therefore no appeal would lie against the order passed u/s 143(3) r.w.s. 263 of the Act giving effect to the directions of Pr CIT in the order passed under section 263 of the Act and the Ld. CIT(A) erred in not appreciating the fact that the Ld. Pr CIT has set aside the order to be done afresh on various issues as per law. Thus it is open ended set aside to decide the issue as per law and no specific direction was given by the Pr. CIT.
4. After haring both the parties and carefully perusing the material placed before us including the order passed by the Pr. CIT under section 263 of the Act. We observe that the Ld. Pr. CIT has set aside the issues to the file of the AO with the direction that the same should be decided as per law and as per facts on record after affording a reasonable opportunity of 3 SA No.103/M/2018 (Arising out of M/s. Fine Jewellery Manufacturing Ltd. being heard to the assessee. Thus, the Pr. CIT has not given any specific direction but has left the assessment to be made by the AO according to the law. Therefore, we are not in agreement with the conclusion drawn by the first appellate authority that appeal filed by the assessee against the quantum order passed under section 143(3) read with section 263 is not appealable on the ground that the assessee has not challenged the order passed under section 263 and thus no appeal would lie against the order giving effect to the directions of Ld. Pr. CIT under section 263 of the Act. In the instant case, the Pr. CIT has set aside the issues to the file of the AO without giving any specific direction or to pass any particular order on the said issues but has left open at the discretion of the AO to decide the matter as per law. Under these circumstances, we are of the considered view that order passed by Ld. CIT(A) dismissing the appeal of the assessee without deciding the issue on merits is bad in law and can not be sustained. Accordingly, we restore the matter back to the file of Ld. CIT(A) with the direction to decide the same on merits after affording the reasonable opportunity of being heard to the assessee. The ground is allowed.
Since the appeal is restored to the file of the CIT(A), other grounds need not be adjudicated.
The stay application which was heard along with this appeal has become infructuous as we have restored the appeal to the file of the Ld. CIT(A).
4 SA No.103/M/2018 (Arising out of M/s. Fine Jewellery Manufacturing Ltd. 7. Accordingly, appeal of the assessee is partly allowed for statistical purposes and stay application is disposed off as indicated above.
Order pronounced in the open court on 20.06.2018.