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2018 (8) TMI 279 - CALCUTTA HIGH COURTInterpretation of the Explanation to Section 251 of the Income Tax Act, 1961 - power of CIT(A) to direct the AO to reopen the case - Assessee was discovered to have not disclosed the donations received by the assessee or claimed deduction thereon - Proceedings for imposing penalty on the assessee were taken up under Section 271 - Commissioner (Appeals) perceived that the assessment of tax was erroneous and required the Assessing Officer to reopen the matter to ascertain whether further income had escaped tax and also affirmed the penalty imposed on the assessee - Tribunal did not disturb the penalty that was imposed on the assessee but found that the further direction issued by the Commissioner (Appeals) for the Assessing Officer to reopen the matter was unwarranted Held that:- The key expression in the Explanation to Section 251 of the Act is “any matter arising out of the proceedings in which the order appealed against was passed”. As would be evident from Section 251(1) of the Act, an appeal against an order of assessment is covered by clause (a) thereof and an appeal against an order imposing a penalty is covered by clause (b) thereof. In other words, independent appeals arise out of orders of assessment and orders imposing any penalty. In this case, the order that was before the Commissioner (Appeals) was an order imposing a penalty and not an assessment order. If the assessment order that resulted in the penalty proceedings being instituted was before the Commissioner (Appeals), the direction may have been justified. However, in the appeal arising out of the order imposing the penalty, the matter pertaining to some other income escaping assessment did not fall within the purview of the expression “any matter arising out of proceedings in which the order appealed against was passed”. Accordingly, the view taken by the Appellate Tribunal in the context of the limited authority exercised by the Commissioner (Appeals) in course of adjudicating an order imposing a penalty, does not warrant any interference.
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