TMI Blog2006 (3) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... s by not only setting aside of the order of the CIT(A) but even proceeding to annul the order of the Assessing Officer also. Such approach is neither legal, nor proper. It only exhibits the anxiety of the Tribunal to decide the appeal on the merits even on those points which did not arise for decision out of the order of the CIT(A) . In other words, instead of concentrating on the issues already decided by the CIT(A), the Tribunal only concentrated on those grounds which had not been taken before the CIT(A) and then answered them in favour of the assessee by completely annulling the whole assessment. There would have been no prejudice caused to either party if the case had been remanded to the CIT(A) once the prayer to raise additional grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Income-tax) under section 260A of the Income-tax Act, 1961, against an order dated February 29,2000, passed by the Income-tax Appellate Tribunal in I.T.A. Nos. 440/Ind./94, 855/Ind./96, 856/Ind./96 and 1107/Ind./96. This appeal as also other four appeals were admitted for final hearing on the following substantial questions of law: 1. Whether the Income-tax Appellate Tribunal was justified in recording a finding that the assessment in question which were essentially based upon the revised return filed by the assessee are void ab initio and, therefore, annulled? 2. Whether the finding recorded by the Income-tax Appellate Tribunal annulling the assessment made by the Assessing Officer for the assessment year in question is legally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in appeal or it should have remanded the case to the Commissioner of Income-tax (Appeals) for deciding those four grounds in accordance with law? 5. We wish to take up the additional substantial question of law first. This is how the Tribunal dealt with this issue in their order: I.T.A. No. 440/Ind./94- This is an appeal of the assessee in which the order of the Commissioner of Income-tax (Appeals) has been assailed on various grounds. During the course of hearing the assessee has filed the following additional grounds of appeal with the request to admit the same:- 'For that the order so passed is without jurisdiction and barred by limitation. For that the proceedings so initiated under section 142(2A) of the Income-tax Act is illegal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Income-tax (Appeals) has wide discretion as also jurisdiction to deal with the issue and pass appropriate orders raised before him by the assessee. 7. In our considered view, therefore, the Tribunal having permitted the assessee to raise four additional grounds treating them to be legal grounds in appeal for the first time, should have set aside the order of the Commissioner of Income-tax (Appeals) and remanded the case to the Commissioner of Income-tax (Appeals) for deciding the appeal by the Commissioner; of Income-tax (Appeals) afresh on all the issues including on those four grounds raised by the assessee in the appeal before the Tribunal rather than to decide the same on the merits for the first time by themselves and set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejudice caused to either party if the case had been remanded to the Commissioner of Income-tax (Appeals) once the prayer to raise additional grounds was allowed by the Tribunal in favour of the assessee. When a litigant has a right to seek adjudication on a particular point from one more authority (as in this case Commissioner of Income-tax (Appeals)) and again acquire a right to reiterate the challenge before the higher appellate authority (such as Tribunal) in case if the challenge is decided against by the first appellate authority, then in such event, there is no justifiable reason as to why a litigant is deprived of such an opportunity. We, therefore, do not agree to such approach resorted to by the Tribunal and hence, we set aside th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Income-tax (Appeals) will decide the appeal strictly in accordance with law on the merits as if there is no finding on any of the issues ever recorded by the Tribunal because once we set aside the order of the Tribunal, then such order is regarded as being not in existence and cannot be looked into for any purpose, nor can be relied on or referred to by any authority much less an authority subordinate to the Tribunal. Needless to observe, the four additional issues urged by the assessee will have to be decided by the Commissioner of Income-tax (Appeals) keeping in view the law laid down by the Supreme Court and the High Courts in several cases holding the field in their right perspective. Let this be done within six months by the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
