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2016 (6) TMI 898 - GUJARAT HIGH COURT

2016 (6) TMI 898 - GUJARAT HIGH COURT - [2017] 390 ITR 267 - Power of tribunal - Whether the Tribunal had the power to pass such an order whereby the total income of the assessee was far much more than the total income assessed by the Assessing Officer and that too, in absence of any grounds of appeal taken by the revenue praying for such decision and without hearing the assessee on such proposed result - Held that:- Tribunal has no power under the Income Tax Act to enhance the assessment in .....

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ppellate Tribunal, Ahmedabad Bench B , Ahmedabad in ITA No.1889/Ahd/1993 for the Assessment Year : 1989-90 whereby the Appeal of the Department was allowed. 2. While admitting the matter on 16.07.2001, the following substantial questions of law were framed by the Court for consideration :- 1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in adjudicating a ground of appeal not taken by the Department viz. whether the surplus of service charges i.e. tota .....

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43/- being sale of REP licence will form part of total turnover? 4. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that ₹ 16,39,443/- being sales of REP licence it is to be included in total turnover for the purpose of deduction u/s. 80HHC? 5. Whether the Tribunal had the power to pass such an order whereby the total income of the assessee was far much more than the total income assessed by the Assessing Officer and that too, in absence .....

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nt reads as under :- 6. In the case of Hukumchand Mills Ltd. v. CIT reported in (1967) 63 ITR 232 this Court has held that under Section 33(4) of the Incometax Act, 1922 (equivalent to Section 254(1) of the 1961 Act), the Tribunal was not authorized to take back the benefit granted to the assessee by the AO. The Tribunal has no power to enhance the assessment. Applying the ratio of the said judgment to the present case, we are of the view that, in this case, the AO had granted depreciation in re .....

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2,08,55,959 x 3,02,19,746 - 3,20,09,756 =19689678 Assessing Officer 143(3) order 2,11,92,759 x 3,02,19,746 - 4,79,42,313 =13351438 (32009756 +17507000 - 1639443) Assessing Officer 154 order 2,11,92,759 x 3,02,19,746 - 4,95,81,756 with 16,39,443 =12927582 CIT (Appeals) 2,11,92,759 x 3,02,19,746 - 3,20,09,756 + 17,50,700 - 3,37,60,456 =19582000 Order of Tribunal 54,36,459 x 3,02,19,746 - 3,37,69,456 =4892813 Learned Counsel for the appellant has also drawn our attention to Sections 251(1)(a) and .....

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ribunal against such order - (a) an order passed by a [Deputy Commissioner (Appeals)] [before the 1st day of October, 1998] [or, as the case may be, a Commissioner (Appeals) under [***] [section 154], [***] section 250, [section 271, section 271A or section 272A]; or (b) an order passed by an Assessing Officer under clause (c) of section 158BC, in respect of search initiated under section 132 or books of account, other document or any assets requisitioned under section 132A, after the 30th day o .....

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or] Chief Commissioner or a [Principal Director General or] Director General or a [Principal Director or] Director under section 272A; [or]] (d) an order passed by an Assessing Officer under sub-section (3), of section 143 or section 147 [or section 153A or section 153C] in pursuance of the directions of the Dispute Resolution Panel or an order passed under section 154 in respect of such order;] (e) an order passed by an Assessing Officer under sub-section (3) of section 143 or section 147 or se .....

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