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2018 (7) TMI 129

s erred in not dealing the issue pertaining to validity of reopening, however, he decided the issue upon merits in favour of the assessee? - Held that:- If a decision is challenged before the first appellate authority both on the issue of validity of jurisdiction as well as merits of the case, the adjudication on validity of reopening can by no stretch of imagination be liable for rejection on the ground that the assessment has been decided in favour of the assessee on merits. We also note that adjudication of issue raised on validity of reopening need reference to factual records which are not available before us. - CIT(A) has decided one issue and has left undecided another issues duly raised before him. Hence, we are of the considere .....

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and also failed to produce the investors before the Assessing Officer for cross examination when specifically ask to do, and thus failed to prove genuineness of the transactions. (III) During the remand proceedings, request made by the assessing officer to Ld.CIT(A) to direct the assessee to produce the investor parties for cross examination before him was not acted upon. At the same time the assessee neither expressed inability to produce the parties / investors nor requested the Assessing Officer to summon them directly. 3. On the facts and circumstances of the case and in law, Ld.CIT(A) failed to appreciate that the ratio of decisions relied upon by him were not applicable to the case of assessee company due to distinguishable fact and i .....

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pening is bad in law and is liable to be quashed. 4. The assessee has also filed grounds under rule 27 of the Income Tax Appellate Tribunal Rules, 1963 submitting that the ld. Commissioner of Income Tax (Appeals) has erred in not adjudicating the issue raised in the additional ground regarding the validity of reopening. 5. At the outset, it is noted that there is a delay of 22 days in filing the cross objection. It has been pleaded that delay is attributed due to the mistake on the part of assessee s Chartered Accountant. Similar grounds as here have also been raised by the assessee under rule 27 of the ITAT Rules. Upon careful considering of the reasonable cause for the delay we condone the same. 6. We first take up on assessee's groun .....

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has been decided in favour of the assessee on merits. We also note that adjudication of issue raised on validity of reopening need reference to factual records which are not available before us. 8. Now the assessee is aggrieved by such an action of the ld. Commissioner of Income Tax (Appeals) and has raised the cross objection as well as the objection under rule 27 before the ITAT. 9. We find that the Hon ble Madras High Court in the case of CIT vs Ramdas Pharmacy [1970] 77 ITR 276 (Mad) had expounded that an appellate authority cannot decide only one issue arising out of many issues and decline to go into the other issues raised before it on the ground that further issues will not arise in view of the finding on the issue decided by it. It .....

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the earlier adjudication by the ld. CIT(A), which we have not adjudicated in view of our remand here. After the order of the ld. CIT(A) is complete, upon adjudication of these issues, both the parties will be at liberty to file necessary appeals as and if necessary. 11. Accordingly, the issues not adjudicated by the ld. Commissioner of Income Tax (Appeals) as raised in the cross objection hereinabove are remitted to the file of the ld. Commissioner of Income Tax (Appeals). The ld. Commissioner of Income Tax (Appeals) shall decide the same afresh after giving the assessee proper opportunity of being heard. In view of our order remitting the aforesaid issues to the file of the ld. Commissioner of Income Tax (Appeals) so as to complete his or .....

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