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Income Tax Appellate Tribunal, BANGALORE BENCH C, BANGALORE
PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER :
Grounds taken by assessee in this appeal, against an order dt.17.11.2008 of CIT (A), Mysuru is reproduced hereunder :
ITA.903/Bang/2015 Page - 2 ITA.903/Bang/2015 Page - 3
Facts apropos are that assessment was originally completed on the assessee on 26.12.2007 for the impugned assessment year inter alia making the following additions :
ITA.903/Bang/2015 Page - 4
TOTAL .. Rs.30,43,685
Assessee had filed an appeal against above additions where upon CIT (A) deleted the additions mentioned at item nos.1 and 2 totalling to Rs.4,85,000/- and sustained the balance additions totalling to Rs.25,58,685/-. Thereafter the assessee chose to move this Tribunal.
In further appeal filed by the assessee before the Tribunal against the sustained addition of Rs.25,58,685/- this Tribunal restored all the issues relating to the additions mentioned at sl. Nos.3 to 8 and relevant para 6 to 11.2 of the order of Tribunal is reproduced hereunder:
ITA.903/Bang/2015 Page - 5 ITA.903/Bang/2015 Page - 6 ITA.903/Bang/2015 Page - 7 ITA.903/Bang/2015 Page - 8 ITA.903/Bang/2015 Page - 9 ITA.903/Bang/2015 Page - 10
It is to be noted that Department had not filed any appeal against the relief of Rs.4,85,000/- granted to the assessee by the CIT (A) and thus it had become final. Thereafter the AO passed an order dt.03.12.2009 purportedly giving effect to the directions of the Tribunal. Such order is reproduced hereunder:
ITA.903/Bang/2015 Page - 11
Subsequently, the AO passed another order u/s.143(3) r.w.s.254 of the Income-tax Act, 1961 (‘the Act’ in short), on 14.12.2010 after examining the issues set aside by the Tribunal to him. Pursuant to such proceedings an order was passed and the additions as made in the original assessment order, appeared here also.
Assessee once again moved the CIT (A). One of the arguments raised by assessee before the CIT (A) was that AO had on 03.12.2009 given effect to the Tribunal directions thereby becoming functus officio.
Thus according to the assessee third round of proceedings taken up by the ITA.903/Bang/2015 Page - 12 AO culminating in the order dt.14.12.1010 was neither an assessment order nor an order giving effect to the Tribunal direction. As per the assessee, there was no power with the AO to pass such orders under any of the provisions of the Act. However CIT (A) was not impressed by the above arguments. According to him the first order dt.03.12.2009 was only to give effect to the relief allowed by lower authorities. Second order in which additions were made, was passed pursuant to directions of this Tribunal, after examining the matters set aside by it. Thus according to CIT (A), orders passed by the AO were in accordance with law and in conformity with the direction of the Tribunal. However CIT (A) did not adjudicate on the merits of the additions made by the AO, giving a reason that the issues relating to these were duly addressed by the AO in the assessment order and assessee could not rebut any of such findings.
Now before us, Ld. AR strongly assailing the order of CIT (A) reiterated the same contentions taken before the CIT (A). According to him, once the order giving effect to appellate direction was passed by the AO on 03.12.2009, there was nothing more left for him to do. As per the Ld. AR, AO had not issued any notice u/s.148 or u/s.154 of the Act. Thus the assumption of jurisdiction for making a subsequent assessment was ITA.903/Bang/2015 Page - 13 beyond the powers vested on an AO under the Act, as per the Ld. AR.
Thus according to him, the proceedings culminating in the order dt.14.12.2010 was illegal was void.
Per contra, Ld. DR supported the orders of authorities below.
We have perused the orders and heard the rival contentions.
Purported order dt.03.12.2009 giving effect to direction of the Tribunal has been reproduced by us at para five above. One of the items on which relief is stated to have been allowed by the Tribunal, in the above order is a sum of Rs.25,58,685/-. However, relevant part of the Tribunal order dt.30.10.2009 has been reproduced by us at para four above. It is evident that Tribunal had set aside all the issues assailed by the assessee before it.
Relief given by CIT (A) coming to Rs.4,85,000/- was never challenged by the Department before the Tribunal. Thus in our opinion the order dt.03.12.2009 of the AO did not give effect to the Tribunal order, in the sense that the set aside issues were not examined by the AO. This was taken up by the AO at a later instance and the resultant order was passed by him on 14.12.2010. No doubt the order mentions as one passed u/s.143(3) r.w.s. 254 of the Act. It is clear from the said order that AO had examined all the issues which were set aside by the Tribunal. Hence, we cannot say ITA.903/Bang/2015 Page - 14 that the order passed by the AO pursuant to such proceedings were invalid or bad in law. We do not find any reason to interfere with the order of CIT (A). Nevertheless we also find that CIT (A) had not examined the merit of the additions assailed by the Assessee. We therefore deem it fit to set aside the order of CIT (A) in so far as the merits of the addition are concerned, so that he can adjudicate the grounds taken by the assessee in this regard in accordance with law. Needless to say the additions deleted by CIT (A) in the original round of proceedings cannot be again done.
In the result, appeal of the assessee is treated as partly allowed for statistical purpose.
Order pronounced in the open court on 29th day of July, 2016.