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2017 (4) TMI 968 - ITAT MUMBAI

2017 (4) TMI 968 - ITAT MUMBAI - TMI - FAA direction to AO to take action u/s. 147/148 and to assess the income of the assessee for the AY. 2008-09 and not for the year under consideration - Held that:- FAA had no power to give directions about another AY. especially no appeal was filed before him for that year. Therefore we hold that the order passed by him was invalid. See Lilasons Industries Ltd case [2016 (6) TMI 1193 - ITAT INDORE]and Murlidhar Bhagwan Das [1964 (1) TMI 5 - SUPREME Court] - .....

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143(3) on 30/12/2011 determining its income at ₹ 18.42 lakhs. 2. The assessee has raised three grounds of appeal. Ground number 2 deals with merits of the case whereas in remaining two grounds jurisdictional issue has been raised. During the assessment proceedings the AO observed that the assessee had received commission of ₹ 25.35 lakhs and interest of ₹ 3.81 lakhs from BASF Styrenics Private Ltd.(BASF) that it had not offered both the items in its return of income. He directe .....

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t received the commission from BASF. He called for a remand report from the AO. A copy of the report was supplied to the assessee and comments were called for about the report. After considering the available material the FAA held that interest in commission payment made to the assessee by BASF related to period October 2007 to March 2008 i.e. relevant for the AY.2008-09 that from the letter sent by BASF to the AO it was clear that commission income was to be assessed in the AY.2008-09 and not i .....

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efore us the Authorised Representative (AR) contended that the FAA had no jurisdiction to direct the AO to assess the income in question in other AY. that his order lacked jurisdiction that the assessee had not raised the issue of taxability of income in a particular year before him that in its grounds of appeal it has objected to the rectification order passed by the AO. He relied upon the cases of Murlidhar Bhagwan Das (52 ITR 335) Anil Suri (66SOT 180) the Lilasons Industries Ltd (ITA/308/Ind .....

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has given a direction for an AY. For which no appeal was pending before him.We find that similar issue was dealt by the Tribunal in the case of Lilasons Industries Ltd.(supra). After narrating the facts of the case the Tribunal observed as under: 9. Against this order of the ld. CIT(A) the Department is not in appeal. The assessee is challenging the direction of the ld CIT(A) to take remedial action as per law for the relevant A.Y. 2009-10 and A.Y. 2010-11 in the case of appellant company in bo .....

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e powers of ld. CIT(A) are worded. It is a settled law that the ld. CIT(A) has coterminus powers with that of the ld. AO. Ld. CIT(A) could conduct any enquiry as he thinks fit and do enhancement of assessment. The jurisdiction of ld. CIT(A) is not limited to the subject matter of appeal but to the subject matter of assessment. He can do what the ld. AO has failed to do. 12. For this contention the ld. Authorized Representative for the assessee placed reliance on the following case laws :- (i) CI .....

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. would be improper in deciding the appeal for A.Y. 2011-12. For this contention ld. Authorized Representative for the assessee relied on following judgments: - (a)CIT vs C. M. Rajgarhia 121 ITR 778 (Pat.) 785. (b)C. M. Rajgarhia 121 ITR 778 (Pat.). (c) Pt. Hazari Lal 39 ITR 265 (All.) (d)Laxmi Narain Agarwal 47 ITR 456 (All.) (e) Mathuradas B. Mohta 56 ITR 269 (Bom.) (f) N. Kt. Sivalingam Chettiar 66 ITR 586 (SC) (g)Durga Prasad 57 ITR 583 (All.) (h)Nathalal Dhanjibhai 59 ITR 615 (Guj.) (i) Dav .....

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21 We find that the gist of the plethora of judgments quoted above is that where any AY. was not before the ld. CIT(A) no findings can be given in respect of such cases. We find that in the case of Pt. Hazari Lal 39 ITR 265 (All.) it was made clear that the AAC was only competent to record the finding that the sum which was in question in the appeal before him was not income relevant to the AY. 1947-48 which was in appeal in that case. The question whether this income accrued or was earned in th .....

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ticular year under appeal. The AAC no doubt was competent to hold whether a particular item or a particular amount was income of that AY. but he had no jurisdiction further to decide in that appeal the appropriate year in which the said income would fall. We also observe that in the case of Nathalal Dhanjibhai 59 ITR 615 (Guj) wherein it was held that a finding therefore could only be that which was necessary for the disposal of an appeal in respect of the assessment of a particular year. Hon .....

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ter-alia held that relevant capital gains had already been taxed in AY. 1962-63 when land was acquired directed ITO to bring it to tax in current AY.. Such directions of the ld. CIT(A) were held to be unsustainable. We find that in Onkar Nath 64 ITR 347(All.) Hon'ble Allahabad High Court held that the law gives the AAC the power to give direction that a certain sum which was deleted from the assessment of the firm should be assessed in the hands of a partner as his individual income. For the .....

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