2017 (4) TMI 710 - AT - Income Tax

Power of CIT(A) to remand back the case / sent back the matter to the file of AO for examination - Held that - CIT(Appeals) has no power to send back the matter to the file of the Assessing Officer. At the best the CIT(Appeals) may call for remand report from the Assessing Officer and decide the issue by himself in one way or other therefore remitting back the matter to the file of the Assessing Officer for re-examination may not be justified. The fact remains that the issue raised by the assessee requires reconsideration by the Assessing Officer therefore by exercising the power of this Tribunal the matter needs to be sent back to the file of the Assessing Officer as rightly submitted by the Ld.counsel for the assessee. Accordingly the orders of the authorities below are set aside and the issue raised by the assessee in the crossobjection and the issue raised in the appeal are remitted back to the file of the Assessing Officer. The Assessing Officer shall reexamine the issue afresh in the light of material that may be furnished by the assessee for verification and then decide the issue afresh in accordance with law after giving a reasonable opportunity to the assessee.

Summary

Issues:
1. Power of Commissioner of Income Tax (Appeals) to remit matters back to Assessing Officer for re-examination.

Analysis:
The judgment pertains to an appeal by the Revenue against the order of the Commissioner of Income Tax (Appeals) concerning the assessment year 2004-05. The assessee also filed a cross-objection against the same order. The main contention revolved around the Commissioner of Income Tax (Appeals) sending the issue of sales return back to the Assessing Officer for examination. The Departmental Representative argued that the Commissioner of Income Tax (Appeals) did not have the power to do so. On the other hand, the counsel for the assessee contended that the matter needed re-examination, and thus, the Assessing Officer should examine it. The Tribunal observed that the Commissioner of Income Tax (Appeals) could call for a remand report but did not have the authority to remit the matter back to the Assessing Officer. Therefore, the Tribunal decided to remit both the issue raised by the assessee in the cross-objection and the issue raised in the appeal back to the Assessing Officer for fresh examination. The Assessing Officer was directed to reexamine the matter considering any additional material provided by the assessee and then decide the issue in accordance with the law after granting a reasonable opportunity to the assessee.

The judgment emphasized that the power to remit matters back to the Assessing Officer for re-examination lies with the Tribunal, not with the Commissioner of Income Tax (Appeals). The Tribunal highlighted that the Commissioner of Income Tax (Appeals) could call for a remand report but should decide the issue themselves. In this case, since the issue required reconsideration by the Assessing Officer, the Tribunal exercised its authority to remit the matter back for fresh examination. The judgment concluded by allowing both the appeal of the Revenue and the cross-objection of the assessee for statistical purposes, indicating that the decision was made solely for procedural reasons and did not delve into the substantive merits of the case.