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Facts
The assessee filed an appeal against the order of the CIT(A)-NFAC. The assessee had raised several technical grounds of appeal before the CIT(A), but the CIT(A) set aside the assessment order for de-novo assessment without adjudicating these technical grounds.
Held
The Tribunal observed that the CIT(A) did not adjudicate the technical grounds and incorrectly restored the assessment for de-novo assessment. The Tribunal set aside the order of the CIT(A) and restored the appeal to the file of the CIT(A) for fresh adjudication of all grounds.
Key Issues
Whether the CIT(A) erred in setting aside the assessment order for de-novo assessment without adjudicating the technical grounds of appeal raised by the assessee.
Sections Cited
147, 148, 144, 144B, 153C, 234A, 234B, 234D, 251(1)(a)
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Income Tax Appellate Tribunal, DELHI BENCH “A” NEW DELHI
Before: SHRI CHALLA NAGENDRA PRASAD & SHRI M BALAGANESH
सुनवाईक�तारीख/ Date of hearing: 17.09.2025 12.11.2025 उ�ोषणाक�तारीख/Pronouncement on आदेश /O R D E R PER C.N. PRASAD, J.M.
This appeal is filed by the Assessee against the order of the Ld.
CIT(Appeals)-NFAC, Delhi dated 12.02.2025 for the AY 2019-20 has raised the following grounds: 1. “That on the facts and circumstances of the case, Notice u/s 148 issued by the Ld. AO is bad both in the eye of law as notice is issued after the expiry of limitation period, Ld. CIT(A) erred in not deciding this issue.
VAN BROS CONSTRUCTION PVT. LTD. 2. That on the facts and circumstances of the case, Notice u/s 148 issued by the Ld. AO is bad both in the eye of law as notice is issued u/s 148 instead of 153C, Ld. CIT(A) erred in not deciding this issue.
3. On the facts and circumstances of the case, the order passed by the Ld. AO u/s 147 r.w.s. 144 read with section 144B of the Act is illegal and bad in law as the same has been passed without giving opportunity of cross examination of the persons whose statement used against the assessee while making assessment, Ld. CIT(A) erred in not deciding this issue.
4. That the AO’s order is contrary to the law and the facts of the case in so far it relates to passing assessment order without providing copies of the statements recorded under the Act of the persons on the basis of which assessment order was passed.
5. That the AO’s order is contrary to the law and the facts of the case in so far it relates to passing assessment order without providing copies of the documents referred in the notice u/s 148A(b), 148(d) as well as show cause notice dated 19.02.2024 on the basis of which assessment order was passed.
6. That the AO’s order is contrary to the law and the facts of the case in so far it relates to passing assessment order without inspection of the assessment file and the file in which notice u/s 148A(b) was processed.
7. That the AO’s order is contrary to the law and the facts of the case in so far it relates to passing assessment order without providing copy of the sanction obtained before issue of notice u/s 148.
8. That the AO’s order is contrary to the law and the facts of the case in so far it relates to passing assessment order without disposing off the objection of the assessee that notice u/s 148 dated 13.04.2023 has been issued by the Jurisdictional Assessing Officer (JAO) and not by National Faceless Assessment Centre (NFAC).
9. That the AO’s order is contrary to the law and the facts of the case in so far it relates to addition of Rs.24,26,098/- of the Income Tax Act, 1961 without considering the submissions made by the assessee on merits and without stating anything
10. That the AO’s order is contrary to the law and the facts of the case in so far it relates to calculation of interest u/s 234A of the Income Tax Act, 1961.
11. That the AO’s order is contrary to the law and the facts of the case in so far it relates to calculation of interest u/s 234B of the Income Tax Act, 1961.
12. That the AO’s order is contrary to the law and the facts of the case in so far it relates to calculation of interest u/s 234D of the Income Tax Act, 1961.
13. That the AO’s order is contrary to the law and the facts of the case in so far it relates to not giving Credit of TDS of Rs.16,59,722/- and TCS of Rs.1,32,621/- which is duly reflected in the Form 26AS and for which no show cause notice is given.
14. That the AO’s order is contrary to the law and the facts of the case in so far it relates to calculation of Tax on normal income at the rate of 40% instead of 25% in Computation of Income.
15. That the Appellant craves leave to add, substitute or delete any grounds of appeal on before the date of hearing and all the above grounds of appeal are without prejudice to each other.”
2. Ld. Counsel for the assessee, at the outset, stated that the Ld. CIT(A) while disposing of the appeal did not adjudicate the technical grounds raised by the assessee. Ld. Counsel for the assessee referring to para 5.3 of the order of the Ld. CIT(A) stated that the Ld. CIT(A) set aside the assessment order passed by the AO u/s 147 r.w.s. 144B of the Act for making the denovo assessment without deciding the technical grounds. Therefore, Ld. Counsel requested that the appeal may be restored to the file of the of the Ld. CIT(A) for deciding all the grounds including the technical ground raised by the assessee.
3. Heard rival contentions, perused the orders of the authorities below. We observe that the assessee raised various technical grounds before the Ld. CIT(A) and the Ld. CIT(A) without adjudicating the technical grounds set aside the assessment for making denovo assessment as is evident from the Ld. CIT(Appeals) order which is as under:
“3. Being aggrieved by the assessment order u/s 147 r.w.s. 144 r.w.s. 144B dated 17.03.2024, the appellant has presented this appeal, wherein it has taken the following grounds , - 1. “On the facts and circumstances of the case, Notice u/s 148 issued by the Ld. AO is bud both in the eye of law as notice is issued after the expiry of limitation period.
2. On the facts and circumstances of the case, Notice u/s 148 issued by the Ld. AO is bad both in the eye of law as notice is issued u/s 148 instead of 153C.
On the facts and circumstances of the case, the order passed by the Ld. AO u/s 147 r.w.s 144 read with section 144B of the Act is illegal and bad in law as the same has been passed without giving opportunity of cross examination of the persons whose statement used against the assessee while making assessment.
That the AO's order is contrary to the law and the facts of the case in so far it relates to passing assessment order without providing copies of the statements recorded
under the Act of the persons on the basis of which assessment order was passed.
That the AO's order is contrary to the law and the facts of the case in so far it relates to passing assessment order without providing copies of the documents referred in the notice u/s 148A(b), 148(d) as well as show cause notice dated 19.02.2024 on the basis of which assessment order was passed.
That the AO's order is contrary to the law and the facts of the case in so far it relates to passing assessment order without providing inspection of the assessment file and the file in which notice u/s 148A(b) was processed.
That the AO's order is contrary to the law and the facts of the case in so far it relates to passing assessment order without providing copy of the sanction obtained before issue of notice u/s 148.
That the AO's order is contrary to the law and the facts of the case in so far it relates to passing assessment order without disposing off the objection of the assessee that notice u/s 148 dated 13.04.2023 has been issued by the jurisdictional assessing officer (JAO) and not by National Faceless Assessment Centre (NFAC).
That the AU's order is contrary to the law and the facts of the case in so far it relates to addition of Rs.24,26,098 of the Income Tax Act, 1961 without considering the submissions made by the assessee on merits and without stating anything in the assessment order as to why submissions are not accepted.
That the AO's order is contrary to the law and the facts of the case in so far it relates to calculation of interest u/s 234A of the Income Tax Act, 1961.
That the AO's order is contrary to the law and the facts of the case in so far it relates to calculation of interest u/s 234B of the Income Tax Act, 1961.
That the AO's order is contrary to the law and the facts of the case in so far it relates to calculation of interest u/s 234D of the Income Tax Act, 1961.
That the AO's order is contrary to the law and the facts of the case in so far it relates to not giving Credit of TDS of Rs.16,59,722/- and TCS of Rs.1,32,621/- which is duly 5
reflected in the Form 26AS and for which no show cause notice is given.
That the /AO's order is contrary to the law and the facts of the case in so far it relates to calculation of Tax on normal income at the rate of 40% instead of 25% in Computation of Income.
That the Appellant craves leaves to add, substitute or delete any grounds of appeal
on before the date of hearing and all the above grounds of appeal are without prejudice to each other.”
4. During the appeal proceedings, the appellant has filed written submissions before the National Faceless Appeal Centre (NFAC). The appeal is adjudicated upon in respect of each ground of appeal, as under, after taking into consideration the assessment order and written submissions filed by the appellant.
5. Appellate Decision 5.1 The appellate order was served on 17.03.2024 to assessee and the appeal was filed by the assessee on 16.04.2024. Thus, the appeal has been filed within the stipulated period of thirty days from the date of service of the notice of demand. 5.2 The assessment was completed on 17.03.2024and order was passed u/s 147 r.w.s. 144 r.w.s. 144B of the I. T. Act. The assessee had not responded to the notices issued during the assessment proceedings. Now the assessee has filed various details in support of his claim taken during the present appellate proceedings. As per the newly inserted proviso to section 251(1)(a) of the Act, Commissioner (Appeals) in case of order of assessment made u/s. 144 of the Act, may set aside such assessment and refer the case back to the AO for making a fresh assessment in accordance with law. This proviso has been inserted in the Act w.e.f. 1.10.2024. The said proviso to section 251(1)(a) of the Act is reproduced as under: 251. (1) In disposing of an appeal, the Commissioner (Appeals)] shall have the following powers— (a) in an appeal against an order of assessment, he may confirm, reduce, enhance or annul the assessment; VAN BROS CONSTRUCTION PVT. LTD. Provided that where such appeal is against an order of assessment made under section 144, he may set aside the assessment and refer the case back to the Assessing Officer for making a fresh assessment. 5.3 In view of the above facts as discussed above and changes in the Act, as enumerated above, it is felt that the consideration of the recent submissions filed by the appellant, is justified for the correct appreciation of the issue under deliberation. Therefore, the Order passed by the AO u/s. 147 r.w.s. 144 r.w.s. 144B of the Act dated 17.03.2024is hereby set aside for making fresh assessment, de-novo, after taking into account the above submissions filed by the appellant. Needless to say that the AO should, while conducting the set aside proceedings, shall give proper opportunities of representation of its case to the appellant and take into account any further submissions which it has to file during the course of the said proceedings. The appellant should duly comply with the correspondences issued by the AO. 5.4 The appeal filed by the appellant is thus disposed-off and assessment is set aside to the file of the A.O.”
4. We observe that the Ld. CIT(A) has not adjudicated the technical grounds and proceeded to restore the assessment to the Assessing Officer for the denovo assessment without deciding the technical ground which is not proper. Thus, we set aside the order of the Ld. CIT(A) and restore the appeal to the file of the Ld. CIT(A) to pass fresh order deciding all the grounds including the technical grounds raised by the assessee, after providing adequate opportunity to the assessee. purpose.
Order pronounced in the open court on 12.11.2025