TMI Blog2012 (7) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... nul the assessment order if found contrary to the ITAT's directions and directing the AO to carry out the requirements of the order of ITAT cannot be denied - considering the amendment in section 251(1)(a)it cannot be assumed that the CIT(A) is divested of the power to annul the assessment and then to pass appropriate consequential order. Even if the appeal had been filed after amendment to section 251(1)(a) the order as passed by the CIT(A) directing the AO to decide the matter in accordance with the directions of the ITAT cannot be said to be unauthorized - against revenue. - D.B. IT APPEAL NOS. 139 (JODH.) OF 2007 AND 31, 35, 70, 117 & 142 OF 2008 - - - Dated:- 27-4-2012 - DINESH MAHESHWARI AND C.M. TOTLA, JJ. K.K. Bissa for the Appellant. Anjay Kothari for the Respondent. JUDGMENT Dinesh Maheshwari, J. These six income-tax appeals by the revenue under section 260A of the Income-tax Act, 1961 ['the Act of 1961'] in relation to the same assessee, arising out of similar nature and inter-related orders, and involving similar nature substantial question of law, have been considered together; and are taken up for disposal by this common judgment. 2. Put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspects would suffice. 5. The relevant background aspects in ITA No. 139/2007 pertaining to assessment year 1979-80 are as follows: The assessment in this case was earlier completed by the AO on 20.01.1983 at nil income. The appeal against this order was decided by the CIT(A) on 08.03.1994. The assessee's appeal [ITA No. 1232 (JP)/94] against this order was decided by the ITAT on 22.11.2001. In its order dated 22.11.2001, the ITAT restored essentially two issues to the file of AO for consideration afresh namely, the issue regarding disallowance of the provision for bad debts and written off advances: and regarding the assessee's claim for higher depreciation on the building, said to be the part of plant and machinery, after inspection of the building by the AO. 6. Such relevant background aspects in ITA No. 35/2008 in relation to the assessment year 1980-81 are as follows; The AO passed the assessment order dated 24.01.1984 at nil income. The appeal was decided by the CIT(A) on 09.03.1994; and the assessee's appeal [ITA No.1233(JP)/94] against this order was decided by the ITAT on 23.11.2001. In this matter, pertaining to assessment year 1980-81. the ITAT restored three is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is an adjunct to the carrying on of a business and not the essential site or core of the business itself. Keeping in view the facts of the case it is necessary to restore this issue to the file of the AO with direction that after proper appraisal of facts and inspection of the building constructed and keeping in view the various judgments discussed above, he should decide this issue afresh as to whether the building is a plant or not.". As per the direction of the Hon'ble ITAT, the AO was to decide whether the buildings are plant or not after proper appraisal of the facts and inspection of the buildings constructed and keeping in view the various judgments discussed in the order From the facts as discussed above it is clear that the AO has not followed the directions of the Hon'ble ITAT. The appellant company had submitted that name and address of the units where the buildings were constructed as also photographs of the buildings. The appellant company also offered its assistance for inspecting the buildings at units. Therefore, the AO was not justified in stating that the appellant did not furnish proper information for inspecting the buildings. In view of the above, the AO i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst appellate authority on this count. 10. Similar ground raised on similar facts and finding of the ld. CIT(A) has been assailed by the Revenue in the other years. Both the sides are in agreement that the facts and circumstances of this ground are mutatis mutandis similar to all the other years. We, therefore, uphold the impugned order as it is not suffering from any infirmity." 10. As noticed above, the first three appeals herein (ITA Nos. 139/2007, 35/2008 and 31/2008) have been filed against the aforesaid common order dated 20.02.2007 whereby the ITAT has affirmed the order passed by CIT(A) on 29.04.2004 while essentially contending that the CIT(A) had no authority to remand the matter to the AO after the amendment to section 251(1)(a) of the Act, 1961 with effect from 01.06.2001 taking away his powers of remand. 11. For completion of background aspects, it could be noticed that as against the order dated 29.04.2004 the revenue made the respective rectification applications under section 154 of the Act, 1961 before the CIT(A) who proceeded to reject the same by the common order dated 12.08.2004. The appeals preferred against this order dated 12.08.2004 were dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture amendment was made by the Finance Act, 2001 in regard to the powers of Commissioner (Appeals); and the Hon'ble Gujarat High Court, with reference to the decision in Umesh Dhaimode ( supra ), held that even after amendment, such powers of remand have not been taken away specifically. 14. The relevant provision i.e., Section 251(1)( a ) of the Act, 1961 reads as under :- "251. Powers of the Commissioner (Appeals) (1) In disposing of an appeal, the Commissioner (Appeals) shall have the following powers- ( a ) in an appeal against an order of assessment, he may confirm, reduce, enhance or annul the assessment;" 15. Noticeable it is that earlier, there existed an expression after semicolon in the above-quoted clause (a), which conferred other powers on the Commissioner (Appeals); and which was deleted by the Finance Act, 2001 with effect from 01.06.2001. The said deleted portion as occurring in clause (a) after semicolon was as under:- "or he may set aside the assessment and refer the case back to the Assessing Officer for making a fresh assessment in accordance with the directions given by the Commissioner (Appeals) and after making such further inquiry as ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder appeal before the appellate authority. The appellate authority is also invested with the power to pass such order as it deems fit. Both these portions of the aforesaid provision, read together, necessarily imply that the appellate authority has the power to set aside the decision which is under appeal before it and to remand the matter to the authority below for fresh decision." 19. Even if the amendment in the aforesaid clause (a) of section 251(1) has been made so as to provide that the Commissioner (Appeals) may not set aside the assessment and refer the case back to the AO for making fresh assessment with a view to help bringing an early finalisation of the assessment, it cannot be assumed that the CIT(A) is divested of the power to annul the assessment and then to pass appropriate consequential order. 20. This apart, in the present case, as observed hereinbefore the factual aspect has been that the order as passed by the AO which was subject of appeal before the CIT(A), was not an original order of assessment but was an order of assessment passed after remand by the ITAT. The directions in remand order having not been complied with, the course as adopted by the CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment in accordance with his directions, has been withdrawn. In view of these amended provisions the ld. ACIT, Circle-2, Udaipur filed petition u/s 154 of the Act to rectify the order by calling the order back. The ld. CIT(A), however, rejected the application so filed u/s 154, by observing that the specific directions given by him are in consonance and in compliance with the direction of the Hon'ble ITAT so his order was very well within the four-corners of law, and these directions could not be considered as simple set aside of the issues or that of the assessment order. This finding of the ld. CIT(A), is the subject-matter of all these four appeals. The facts and issues involved in all these appeals are, mutatis mutandis , identical. 3. We have heard the rival submissions and perused the evidence available on record. 4. The department has raised similar plea as was raised before the ld. CIT(A). The subject matter of all the above appeal is exactly similar. Having gone through the orders of the CIT(A), the applications u/s 154 so filed, the provisions of section 250 as amended upto date and the ITAT order referred to in this regard, we are of the considered opinion that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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