TMI Blog2019 (2) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... merits. The assessee is free to take up all the grounds relating to merits before the CIT(A). - Appeals of the assessee are allowed for statistical purpose. - I.T.A.No.324 And 325/Viz/2016 - - - Dated:- 30-1-2019 - Shri V. Durga Rao, Judicial Member And Shri D.S. Sunder Singh, Accountant Member For the Appellant : Shri M.Madhusudhan, AR For the Respondent : Shri D.K.Sonowal, CIT DR ORDER PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER: These appeals are filed by the assessee against the order of the Commissioner of Income Tax(Appeals) [CIT(A)]-2, Guntur vide Appeal No.158/14-15 dated 21.04.2016 and against the order of the CIT, Rajahmundry vide F.No.18/263/CIT/Rjy/2012-13 dated 14.03.2014 for the Assessment Year (A.Y.)2008-09. I.T.A. No.325/Viz/2016 2. There was a delay of 760 days in filing the appeal against the order of the Ld.CIT passed u/s 263. The assessee filed condonation petition requesting for condoning the delay and the reasons submitted by the assessee for filing the appeal belatedly are that the assessee is an uneducated, ignorant of the provisions of the taxation law and she is completely dependent on tax consultant, who has suggested f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration on sale of lands in fixed deposits in bank and earned the interest instead of making investment in acquiring the exempted assets or depositing the sum in specified bank accounts for claiming long term capital gains exemption. As per the order of the Ld.CIT the assessee should have acquired the exempted asset before the end of F.Y. or deposited the consideration on before 31.07.2008 in specified account, instead, deposited the consideration in fixed deposits in bank and acquired the agricultural lands in F.Y.2008-09 relevant to A.Y. 2009-10. Thus viewed that the AO has erroneously allowed the deduction u/s 54B for an amount of ₹ 92,30,070/- which should have been disallowed, since, the claim was not in accordance with the provisions of Income Tax law, therefore, held that the assessment order passed by the AO is erroneous and prejudicial to the interest of the revenue. Accordingly, directed the AO to withdraw the claim of the assessee while giving effect to the order. However, the Ld.CIT also directed the AO to give opportunity of being heard to the assessee before passing consequential order. 6. AO passed the consequential order u/s 143(3) r.w.s. 263 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding paragraphs, the CIT has set aside the order passed u/s 143(3) and directed the AO to pass consequential order after giving opportunity of being heard to the assessee. The assessee understood from the reading of the CIT order that the assessment was set aside denovo for redoing the assessment, since the Ld.CIT has directed the AO to give opportunity to the assessee to present his case before the AO. Therefore, argued that there is no specific direction in this case and the assessment was set aside for redoing the assessment as per law. Thus, argued that the assessee gets the right of appeal against the order passed by the AO u/s 246 before the CIT(A) and the Ld.CIT(A) bound to decide the appeal on merits. The Ld.AR further submitted that the CIT(A) dismissed the appeal summarily stating that having not filed the appeal, against the order of the Ld.CIT(A), it was presumed that the assessee had accepted the finding of the CIT that the exemption was not allowable which is incorrect interpretation. Therefore requested to set aside the order of the Ld.CIT(A) and requested to remit the matter to the file of the CIT(A) to decide the issue on merits. 8. On the other hand, the Ld.DR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (v) of the Ld.CIT s order indicates that the CIT has directed the AO to withdraw the claim while giving effect to the order passed u/s 263. Para No.10 and 11 shows that the assessment order passed by the AO u/s 143(3) r.w.s. 147 was set aside with a direction to the AO to pass consequential orders after giving opportunity of being heard to the assessee. Combined reading of the order in para No.7.5, 10 and 11 shows that the assessment order is set aside for redoing the assessment after giving opportunity. Further, it is settled issue that when there is an ambiguity in the order, the interpretation beneficial to the assessee is to be taken. The confusion created by the CIT in the order passed u/s 263, gave the impression to the assessee that the assessment was set aside and would be entitled to approach the appellate authorities against the consequential order for justice, hence he did not choose to appeal against the order u/s 263, thereby deprived of his right of appeal before ITAT, because of sheer confusion created in the revisional order passed u/s 263. At one place, the CIT has given a specific direction and at another place, the CIT has given a direction to pass the consequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable opportunity to the assessee. In the concluding paragraph of the Ld. CIT order in Para No.8.1, the Ld.CIT has set aside the assessment and directed the A.O. to redo the assessment afresh de-novo, therefore, combined reading of the entire order shows that the A.O. has to begin the assessment afresh, and the specific direction given by the CIT to add the depreciation is nullified by general direction to re do the assessment de-novo. Mere fact that the assessment was set aside to redo de-novo after giving reasonable opportunity shows that the assessment has to start from the beginning and the assessee is entitled to all legal remedies including the appeal before the CIT(A). Accordingly, the order passed u/s 143(3) r.w.s. 263 of the Act has to be considered as fresh order of assessment and the Ld. CIT(A) vests with the jurisdiction to adjudicate the issues raised in the consequential order afresh on merits. The view of CIT(A) with regard to specific direction for non-assumption of jurisdiction is incorrect when there is contradictory directions on the same issue. As per the decided case laws the direction is in favour of the assessee has to be considered and benefit of doubt shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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