TMI Blog2008 (9) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... de letters dt. 29th Dec., 2005 filed before the learned CIT(A). After due consideration, the assessees were permitted to withdraw the appeals and the appeals were dismissed as withdrawn. 3. Thereafter, assessees filed petitions before the learned CIT seeking revision under s. 264 of the IT Act, 1961 (the Act). The learned CIT vide his common order dt. 31st March, 2006, set aside the assessments and restored the matters with certain directions on various issues to the AO to redo the assessments afresh. Consequently, the AO completed the fresh assessments in pursuance of the directions of the learned CIT. 4. Being aggrieved by the additions made by the AO in those assessments, both the assessees preferred appeals before the learned CIT(A). During the course of hearing, the learned CIT(A) requested the assessees to explain as to how the appeals are maintainable, since the earlier appeals for the same years on similar issues had been withdrawn by the assessees, who had chosen to prefer revisional channel before the learned CIT by moving necessary petitions under s. 264 of the Act. In response, the assessees filed reply, contending inter alia, that since the AO did not properly comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of s. 253(6)(d) of the Act. In support of this contention, reliance was also placed on the decision of the Hon'ble Karnataka High Court in the case of Rajakamal Polymers (P) Ltd. vs. CIT (2007) 207 CTR (Kar) 160 : (2007) 291 ITR 314 (Kar). He therefore, submitted that there is no default on the part of the assessee, and therefore, the appeals filed by the assessee be admitted, which was not seriously objected to by the learned Departmental Representative. 7. We have carefully considered the submissions of the rival parties and perused the material available on record. In all these cases, the learned CIT(A) has dismissed the appeals on the ground that no appeal lies against the orders of assessment passed by the AO in pursuance of the directions given by the learned CIT under s. 264. In Rajakamal Polymers (P) Ltd., the CIT(A) has chosen to reject the appeal on the ground of limitation. Their Lordships held that such an order would fall within cl. (d) of s. 253(6) of the Act, and hence only a sum of Rs. 500 is payable as appeal fee in terms of s. 253(6)(d) of the Act. Since in the cases before us, the learned CIT(A) without adjudicating the appeals before him on merits, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and accordingly reassessments were made, the assessee has no right to file appeal against such reassessments. Reliance was also placed in this behalf on the decision of the Hon'ble apex Court in the case of Hindustan Aeronautics Ltd. vs. CIT (2000) 160 CTR (SC) 524 : (2000) 243 ITR 808 (SC). She therefore, submitted that the appeals filed by the assessee be dismissed. 10. We have carefully considered the rival submissions and perused the material available on record. We find that the facts are not in dispute. At the outset, we reproduce below the material portion of the order of the learned CIT passed under s. 264 of the Act, which reads as follows: "...... Keeping in view the fact that these materials which were available with the AO were perhaps not examined in detail at the assessment stage and even if examined right inferences were not drawn, etc., it would be appropriate to remit the matter back to the AO by setting aside all of the assessments involved to the AO with a direction to redo the assessments de novo after giving adequate opportunity to the assessee. While doing so, the AO may follow the following directions: (1) The issue of existence of the HUF, for which D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the material which was available with the AO was not examined in detail at the assessment stage and even if examined, right inferences were not drawn and therefore, he was of the view that it would be appropriate to set aside the assessments and remit the matter to the file of the AO for reframing the same afresh, after giving adequate opportunity of hearing to the assessee. At more than one place, the learned CIT in his order under s. 264 of the Act, while setting aside the assessments with certain directions with regard to various issues, took pains to mention that the AO should 'redo' the assessments de novo as per his directions. 12. It is pertinent to refer at this stage to the relevant provisions of s. 246A(1) of the Act which stipulate the orders which are appealable before the first appellate authority. Relevant portion of s. 246A(1) of the Act reads as follows: "246A. Appealable orders before CIT(A).-(1) Any assessee aggrieved by any of the following orders (whether made before or after the appointed day) may appeal to the CIT(A) against- (a) an order against the assessee where the assessee denies his liability to be assessed under this Act or an intimation under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n case under s. 143(3) only and an order passed under s. 143(3) is undisputedly an appealable order under s. 246(1)(c) of the Act. 16. In Hada Textile Industries Ltd., assessee wanted to change its previous year for the asst. yr. 1977-78. Necessary application in this regard was made before the ITO. The ITO vide letter dt. 21st Nov., 1975 allowed the change of previous year on three conditions. The first and third conditions were that depreciation as well as relief under s. 80J of the Act will be allowed pro rata. The second condition was that asst. yr. 1977-78 will be considered as one assessment year for the purpose of carry forward of unabsorbed business loss, unabsorbed development rebate and unabsorbed relief under s. 80J. The assessee thereafter made a petition under s. 264 before the CIT and raised objections against the conditions imposed by the AO. The CIT deleted condition No. 1 regarding allowance of pro rata depreciation. The assessee did not take any objection to condition No. 2, and condition No. 3 imposed by the AO was confirmed by the CIT, vide his order dt. 30th Oct., 1979. When the assessment was ultimately made, assessee preferred appeal, inter alia, raising a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CIT can entertain assessee's revision petition under s. 264 of the IT Act, 1961, preferred from a part of order of the CIT(A) against which the assessee is aggrieved during the tendency or after the disposal, as the case may be, of the Department's second appeal before the Tribunal preferred against another part of the same order where the subject-matter of the appellate and revisional proceedings are not the same but relates to distinct matters. The said question was answered in the negative. 20. Whereas in the case before us, the issue is not of maintainability of the revision petition under s. 264 of the Act, but it is in relation to maintainability of the appeal before the learned CIT(A) under s. 246A of the Act against the assessment made in pursuance of the directions of the CIT in his order under s. 264 of the Act. Since both the provisions are distinct, the said decision relied upon by the learned Departmental Representative has no application to the facts of the present case. 21. In the case of CIT vs. Warner Hindustan Ltd. 1978 CTR (AP) 228 : (1979) 117 ITR 15 (AP), Hon'ble jurisdictional High Court held as follows: "As regards the second question, when the AAC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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