I.T.O WD - 2(4),DURGAPUR., DURGAPUR vs. SMT. TANUKA SAHA (L/R OF ARUN KUMAR SAHA) C/O - M/S KAMALA SERVICE STATION, DURGAPUR

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH: KOLKATA [Before Shri Mahavir Singh, JM & Shri Waseem Ahmed, AM]

I.T.A No. 175/Kol/2013 Assessment Year: 2007-08

Income-tax Officer, Wd-2(4), Durgapur Vs. Smt. Tanuka Saha (L/R of Arun Kr. Saha) (PAN: AIXPS9528C) (Appellant) (Respondent)

Date of hearing: 29.10.2015 Date of pronouncement: 05.11.2015

For the Appellant: Shri S. S. Alam, JCIT, Sr. DR For the Respondent: N o n e

ORDER Per Shri Mahavir Singh, JM:

This appeal by revenue is arising out of order of CIT(A), Durgapur in Appeal No.21/CIT(A)/DGP/2010-11 dated 17.08.2012. Penalty was imposed by Addl.CIT, Range-1, Durgapur u/s. 271E r.w.s. 274 of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) for Assessment Year 2007-08 vide his order dated 29.06.2010. 2. At the outset, it is noticed that this appeal of revenue is time barred by 78 days and revenue has filed condonation petition. In view of the reasons stated in condonation petition and we deem it reasonable, we condone the delay and admit the appeal for hearing. 3. The only issue in this appeal of revenue is against the order of CIT(A) setting aside the order of AO and directing him to decide the issue on merits. For this, revenue has raised following ground no.2: “1. For that the Ld. CIT(A) exceeded his jurisdiction in directing the Assessing Officer to conduct enquiries with the alleged recipients and ascertain whether the amounts shown as repayment by cash had actually been paid, tantamount to set aside of the order when the appeal should have been decided on merits.” 4. Briefly stated facts are that during the course of assessment proceedings, the AO noticed that the assessee has made repayment of loan in violation of section 269T of the Act to the extent of Rs.70,34,550/- to its loan creditors otherwise than by account payee cheque or account payee bank draft. The break-up of such payments are as under: “1. Nirmala Service Station : Rs.31,40,000/- 2. Saha Enterprise : Rs.38,94,550/- Total repayment : Rs.70,34,550/-”

2 ITA No.175/K/2013 Smt. Tanuka Saha AY 2007-08 According to AO, no explanation was filed before him and hence, he levied penalty u/s. 271E of the Act. Aggrieved, assessee preferred appeal before CIT(A), who set aside the issue to the file of AO to verify the claim of assessee whether there is any repayment and if repayment is made through account payee cheque or not. Aggrieved against this direction, revenue is now in appeal before us. 5. We have heard Ld. Sr. DR and gone through facts and circumstances of the case. We find that the legislature vide finance Act, 2001 has withdrawn the power of First Appellate Authority to set aside the assessment order w.e.f. 01.06.2001 and accordingly, in the present case the CIT(A) has no power to set aside the issue back to the file of AO. But in the present case, the assessee has not filed any explanation before the AO and even CIT(A) has not adjudicated the issue on merits. Hence, we have no alternative except to set aside the matter back to the file of AO, because we are conscious of the fact that it requires considerable time to explore, investigate and enquire into, to ascertain the actual position. AO is directed to provide reasonable opportunity of being heard to the assessee. Appeal of revenue is allowed for statistical purposes. 6. In the result, the appeal of revenue is allowed for statistical purposes. 7. Order is pronounced in the open court on 05.11.2015 Sd/- Sd/- (Waseem Ahmed) (Mahavir Singh) Accountant Member Judicial Member Dated : 5th November, 2015 Jd. Sr. P.S Copy of the order forwarded to: APPELLANT – ITO, Ward-2(4), Durgapur 1. Respondent – Smt. Tanuka Saha (L/R of Arun Kumar Saha) C/o M/s. 2 Kamala Service Station, Akbar road, Durgapur-713204. The CIT(A), Durgapur 3. 4. CIT Durgapur 5. DR, Kolkata Benches, Kolkata /True Copy, By order,

Asstt. Registrar.