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M/s. TGV Projects & Investments Pvt. Ltd. Versus The Deputy Commissioner of Income Tax & The Asst. Commissioner of Income Tax,

2015 (7) TMI 355 - ITAT HYDERABAD

Validity of CIT's order passed u/s.251(1)(c) - appeal preferred before the CIT(A) is against the order of assessment i.e., re-assessment u/s.147 - whether CIT(A) in his wisdom specifically mentioned clause 251(1)(c), which does not apply to the proceedings pending before him? - Held that:- CIT(A) has not adjudicated the issue at all in its correct perspective. While adjudicating the issue, it is his duty to examine the facts, verify the applicable law and give a decision based on facts and provi .....

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r it afresh and pass appropriate order on merits after examining assessee's contentions. He should also give a finding whether the assessment was re-opened within four years or after four years and if so, should analyze the applicable case law and the provisions of the Act to give a finding whether assessment order can be upheld or not? If required, he should also give a finding in the merits on the additions made by Assessing Officer. With these observations, appeal before the CIT(A) is restore .....

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08-2014. 2. These appeals arise in a peculiar situation of directions of CIT(A) given u/s.251(1)(c) of the Income Tax Act [Act]. Assessee is a company engaged in the business of hotel, leasing of property and franchise of Idea Cellular. Assessing Officer completed the assessment on 22-03-2013 u/s.143(3) r.w.s.147 determined the total income at ₹ 55,60,740/-. As seen from the assessment order, an assessment order u/s.143(3) for the AY.2007-08 was passed on 25-03-2009 assessing the income at .....

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of ITAT, Hyderabad in the case of Gowri Gopal Hospital Vs. ITO in ITA No.1330/Hyd/2013, as similar facts are applicable in the case of assessee, Ld.CIT(A) given decision as under: "4.2 In the appeal the appellant only pressed the ground of reopening on the ground that it was an audit objection and had relied on the decision of the Hon'ble ITAT in the case of M/s. GowriGopal Hospital Vs. ITO in ITA No.1330/Hyd/2013 and did not press ground No.2 and 3 i.e., the issue of depreciation and .....

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lant's case and the decision of the Hon'ble ITAT in the case of M/s. Gowri Gopal Hospital are identical, the Assessing Officer is directed to allow the appeal of the appellant. In this context, the AO is directed to call for the records from the ITO Ward 2(2) and examine whether the issue involved are identical and if so only allow the appeal of the appellant. In case, the facts, circumstances and issues of the two cases are not identical the order of the Assessing Officer is upheld. Thi .....

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(A) to set aside any assessment or issue any direction for further enquiry and passing of the consequential order. 4. The Ld.CIT(A) ought to have appreciated the fact that the Assessing Officer does not have the power to revisit the assessment again on the concluded assessment and cannot gain the power from the order of the CIT(A) which is not authorized by the provisions of the Income Tax Act, 1961. 5. In view of the above, in the instant case, Ld.CIT(A) has erred on facts and in law in directi .....

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ng the appeal, contains instructions to the assessing officer to compare the facts in the case of the appellant, with the facts in the ruling relied upon i.e., ITAT order in the case of Gowri Gopal Hospital Pvt. Ltd., V. ITO (ITA No.1330/Hyd/2013). The modification order deleting the addition was not passed yet. The appellant prefers this appeal before the hon'ble Tribunal to hold that the appeal is allowed and in favour of the appellant. 2. On the facts of the case the reopening of assessme .....

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nt was made u/s.143(3) after examination a further examination u/s.147 is not valid and liable to be quashed, reliance is place on the decision in the case of Viswanath Engineering Vs. ACIT (354 ITR 0211) wherein it was held that having previously examined the nature of expenditure and having accepted during the original assessment, when a scrutiny has taken place it was not open to the assessing officer to re-examine. Any such attempt on the part of the assessing officer would be based on only .....

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51. (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; [(aa) in an appeal against the order of assessment in respect of which the proceeding before the Settlement Commission abates under section 245HA, he may, after taking into consideration all the material and other information produced by the assessee before, or the results of the inquiry held or .....

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u/s.251(1)(a) as contested by the Revenue in ground No.3 either to confirm, reduce, enhance or annul the assessment. It does not empower the CIT(A) to set aside any assessment or delegating the same to the file of Assessing Officer. As can be seen from the direction of the CIT(A), he directs the Assessing Officer to examine another file and hold that appeal is allowable or not. Since appeal is on an order of an assessment, CIT(A) should have examined and decided the issue by virtue of powers co .....

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d against penalty u/s.251(1)(b) and in any other case ie. any miscellaneous proceedings u/s.154 etc., he can invoke powers u/s.251(1)(c). The appeal preferred before the CIT(A) is against the order of assessment i.e., re-assessment u/s.147. Therefore, he should have passed the orders invoking 251(1)(a). Had he restricted himself to 251(1), the issue would not have arisen. However, CIT(A) in his wisdom specifically mentioned clause 251(1)(c), which does not apply to the proceedings pending before .....

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