SHRI SANDEEP SARBATMAL KOTHARI,CHANDRAPUR vs. A.C.I.T., CHANDRAPUR CIRCLE,CHANDRAPUR, CHANDRAPUR

PDF · subscribers
ITA 14/NAG/2021Status: DisposedITAT Nagpur09 October 2023AY 2015-16Bench: SHRI S.S.GODARA (Judicial Member), DR. DIPAK P. RIPOTE (Accountant Member)4 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the CIT(A) does not have the power to set aside an assessment order for verification. Therefore, the CIT(A)'s order was set aside, and the case was remanded for de novo adjudication.

What were the facts?

The assessee's appeal concerned an addition made by the AO due to a difference between book receipts and Form 26AS, relating to Ultratech Cement. The CIT(A) had initially allowed the appeal for statistical purposes, directing the AO to verify gross receipts from 26AS.

What were the issues?

Whether the CIT(A) erred in not adjudicating the addition and if the CIT(A) had the power to set aside the assessment order for verification.

Which sections of the Income-tax Act were involved?

Section 143(3),Section 251

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, NAGPUR BENCH : : NAGPUR

Before: SHRI S.S.GODARA & DR. DIPAK P. RIPOTE

For Appellant: Shri Abhay Agrawal – Adv
For Respondent: Dr. Kaumudi Patil- CIT-DR
Hearing: 21/09/2023Pronounced: 09/10/2023

ORDER

PER DR. DIPAK P. RIPOTE, AM:

1.

This is an appeal filed by the assessee against the order of ld.CIT(A)-2, Nagpur dated 20.02.2020 emanating from assessment order section 143(3) of the Income Tax Act, 1961 dated 05.12.2017 for A.Y.2015-16. The assessee has raised the following grounds of appeal : “1. Whether the learned CIT(A) erred in not adjudicating issue with regards to addition of Rs.49,96,793 made by learned AO due to difference between receipts shown as per Books of accounts vis- Shri Sandeep Sarbatmal Kothari [A] a- vis reflected in Form 26AS, relating to contractee party Ultratech Cement.

2. Without prejudice to Ground 1, the learned AO & CIT(A) failed to appreciate that, difference in receipts of Rs.49,96,763 arose due to the fact that contractee party (i.e Ultratech Cement) deducted TDS at the time of making advance to the Appellant during AY 2015-16 whereas, the Appellant had accounted for the receipts in subsequent year i.e AY 2016-17 following mercantile system of accounting.

3. Without prejudice to Ground 1, the learned AO & CIT(A) failed to appreciate that, subjecting the receipts of Rs.49,96,763 to tax in AY 2015-16 would lead to double taxation of same income since the receipts of Rs.49,96,763 has been offered to tax in AY 2016-17.

4. Without prejudice to Ground 1, whether the action of learned CIT(A) tantamount to "setting aside" of order which is beyond his appellate powers, when the legislature has consciously deleted the said power (i.e to set-aside) from section 251(1)(a) vide Finance Act 2001, w.e.f 01/06/2001.

5. Whether the learned AO erred in not seeking directions from learned CIT(A) with regards to addition of Rs.49,96,793, while giving effect to learned CIT(A)'s order. 6 Whether the action of learned CIT(A) & learned AO has caused serious prejudice to the interests of the appellant.

7. The Appellant prays leave of the Hon’ble Tribunal to add, amend, alter any of the Grounds of Appeal.” 1.1 The ld.Authorised Representative of the assessee filed a paper book.

Findings & Analysis : 2. We have heard both the parties and perused the records. It is observed that the ld.CIT(A) had allowed the appeal for statistical purpose by directing the Assessing Officer(AO) to Shri Sandeep Sarbatmal Kothari [A] verify the gross receipts of 26AS. Subsequently, the AO in the order giving effect to the order of ld.CIT(A) observed that ld.CIT(A) in the order has not adjudicated on the issue and hence claim of the assessee cannot be considered. As per section 251 of the Act, ld.CIT(A) has power either to confirm, reduce, enhance or annul the assessment.

3.

Thus, the ld.CIT(A) does not have any power to set-aside the assessment order to the AO for verification. In these facts and circumstances of the case, we set-aside the order of ld.CIT(A) to ld.CIT(A) for denovo adjudication after giving opportunity to the assessee. The assessee shall provide all the necessary document required by the ld.CIT(A). Accordingly, grounds of appeal raised by the assessee are allowed for statistical purpose.

4.

In the result, appeal of the assessee is allowed for statistical purpose. Order pronounced in the open Court on 9th October, 2023.

More judgments on Section 251

All 1,124 judgments and leading authorities on Section 251 →

Recent GST High Court judgments

Search GST case law →