TMI Blog2004 (1) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... s referred for our opinion in respect of the assessment years 1979-80 to 1983-84: "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in restoring the matter to the Appellate Assistant Commissioner for fresh decision of the appeals when the assessee had not filed any appeal against the additions which have been sustained by the Appellate Assistant Commissioner?" We have heard Mr. Bhatt, learned standing counsel for the Revenue. Though served, none appears for the respondent-assessee. During the survey operations under section 133A of the Income-tax Act, 1961, the Income-tax Officer came to know that the assessee carried on business in medicines on wholesale basis and that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade, the Appellate Assistant Commissioner passed similar orders and the Tribunal in the departmental appeals restored the matter to the Income-tax Officer with a direction to obtain on record some concrete material for estimating the income and then make assessments. In view of the above, when the Tribunal found that the facts were identical, the Tribunal set aside the orders of the Appellate Assistant Commissioner. However, instead of restoring the matter to the Assessing Officer, the Tribunal thought it fit to restore the matter to the Appellate Assistant Commissioner so that the litigation is shortened. The Tribunal, accordingly, disposed of the appeals after restoring the matters to the Appellate Assistant Commissioner with a directio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Tribunal: "The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit." At this stage, we may also note the provisions of Order 41, rule 33 of the Civil Procedure Code, which read as under: "33. Power of court of appeal. - The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act were not complied with by the assessee and the Income-tax Officer substantially enhanced the assessment for the concerned five years. Once the Tribunal found that there was no warrant for assessing the income at the particular amounts mentioned hereinabove, it was but natural that the entire matter was required to be kept at large and to permit the parties to lead evidence. In this set of circumstances, the assessee could not have been tied down to the amounts assessed by the Appellate Assistant Commissioner and the Tribunal, therefore, rightly set aside the assessment orders passed by the Appellate Assistant Commissioner as well. The question whether the matters should have been remanded to the Appellate Assistant Commissioner or to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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