TMI Blog2019 (10) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the assessment under Section 148 in view of lapse of time, sought to achieve the same under the guise of passing fresh order of assessment in pursuant to the remand by the Tribunal. Certainly, the above act of the AO is impermissible under law and consequently, cannot be justified or sustained. No doubt, the learned counsel for the Revenue contended that all the issues are interlinked. No pleading to that effect in the counter filed herein or advancement of argument before the Tribunal. Hence, such contention is liable to be rejected. Thus, this Court is of the view that the assessment made by the Assessing Officer in respect of those two issues viz., income from Short Term Capital Gains under Section 111A and Brought/Forward losses for the assessment years 2006-2007 to 2009-2010 cannot be sustained as valid in law, since such exercise was beyond the scope of the order of remand. While considering the issue which was agitated by the Assessee before the Appellate forums viz., Income from Short Term Capital Gains other than under Section 111A and consequential addition of ₹ 25,05,304/- is concerned, it is the specific case of the petitioner that the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 15.09.2016 under Section 143(3) r/w 147 of the IT Act. In the said assessment order, the Assessing Officer confirmed the assessment by making an addition of a sum of ₹ 25,05,304/- as Short Term Capital Gains. Therefore, the Assessing Officer has accepted that the income has to be assessed under the head Capital Gains and consequently, made the addition as stated supra. The petitioner filed an appeal before the CIT(A) and the same was dismissed on 22.06.2017. The petitioner preferred further appeal before the Income Tax Appellate Tribunal, questioning the erroneous addition of ₹ 25,05,304/- as Short Term Capital Gains. The entire issue in the appeal was only in relation to the sole addition of ₹ 25,05,304/- as Short Term Capital Gains and no other dispute in respect of characterization of the heads of income of the petitioner. The Tribunal, by order dated 10.10.2017, remanded the sole issue in appeal to the file of the Assessing Officer, as it has found that there was violation of principles of natural justice. After remand, the Assessing Officer, without issuing any notice of personal hearing and in complete violation of the order of the Tribunal, completed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 90F), both are not fitting to the situations as explained in detail in the impugned order. It was to disallow such an artificial loss created in the books, the petitioner's case was reopened. The allegations that the assessment was made in violation of principles of natural justice and that the Tribunal has remanded the issue in appeal to the Assessing Officer for re-adjudication for the limited purpose of verifying the client code modifications are wrong and denied. The Tribunal has remanded the issue, as the petitioner had not provided all the details at the time of assessment and also directed the respondent to verify the client code modifications with the broker. The assessment was completed by taking into consideration the material already submitted by the petitioner in the reassessment proceedings. No new material was relied upon. Since the Tribunal has remitted the issue back to the Assessing Officer for re-adjudication after verification of the details of the client code modifications, it is not correct to state that it was remitted only for the limited purpose. The assessment order is absolutely within the jurisdiction of the respondent and there has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Dehradun, (ii) (2009) 309 ITR 434 (SC), Mcorp Global P. Ltd., Vs. CIT. (iii) (2008) 302 ITR 126 (Guj), Saheli Synthetics P. Ltd., Vs. CIT. (iv) An unreported judgement in T.C.(Appeal) No.885 of 2008 dated 04.04.2018, M/s.Sanmar Speciality Chemicals Limited Vs. The Income Tax Officer. (v) (1995) 213 ITR 502 (Mad), Raja DV Seetharamaya Vs. WTO. 7. Per contra, the learned counsel for the Revenue submitted as follows: The Assessing Officer has not exceeded the scope of the remand. All the three issues are interlinked with each other and therefore, the petitioner is not justified in contending otherwise. The Tribunal has remitted the matter with specific directions for re-adjudication, after verifying the details of the client code modifications, also by granting liberty to the Assessing Officer to have the verification of the share transactions with the stock brokers. Therefore, the issues, which are dealt with by the Assessing Officer, interlinked with each other, are in relation to the factual dispute, which have to be gone into and decided only by the next fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order has computed the total income at Paragraph No.9 of the order as follows: The total income is computed as under: Income from House Property as admitted ₹ 1,56,762 Income from Short Term Capital Gains u/s 111A as admitted ₹ 59,56,614 Income from Short Term Capital Gains - other than u/s 111A as discussed in para 8 above ₹ 25,05,304 Income from other sources - as admitted ₹ 4,107 Gross Total Income ₹ 86,22,787 Less : B/F Losses of A.Ys 2006-2007, 2007-2008, 2008-2009 2009-2010 ₹ 56,96,224 ₹ 29,26,563 Less : Chapter VIA deduction ₹ 54,204 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght/Forward losses shown by the Assessee and accepted by the Assessing Officer to the tune of ₹ 56,96,224/-, is also not the dispute raised before the Appellate Authorities. When such being the factual position, the Tribunal, after considering the issue with regard to the addition of ₹ 25,05,304/- representing Short Term Capital Gains in respect of the share transactions on which client code modifications had been done, found that the said issue has not been properly assimilated nor the facts relevant for deciding the said issue were produced by the Assessee. Therefore, the Tribunal by partly allowed the appeal restored the said issue to the file of the Assessing Officer for re-adjudication after verifying the details of the client code modifications. At this juncture, it is relevant to note that the Tribunal consciously restored only that issue to the file of the Assessing Officer for re-adjudication viz., addition of ₹ 25,05,304/- and not for re-adjudication in respect of all the issues that were considered by the Assessing Officer under various heads while passing the order of assessment. 14. After remand, the Assessing Officer in this case, gone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he cannot take up the questions which were not the subject matter of appeal before the Tribunal, even though no specific direction has been given by the Tribunal. The relevant observation is extracted hereunder: When the Tribunal set aside the assessment and remands the case for making a fresh assessment, the power of the Income Tax Officer is confined to the subject matter of appeal before the Tribunal. He cannot take up the questions which were not the subject matter of appeal before the Tribunal, even though no specific direction has been given by the Tribunal . (b) In (2008) 302 ITR 126 (Guj), Saheli Synthetics P. Ltd., Vs. CIT, the Division Bench of the Gujarat High Court has observed that even where an assessment is set aside simpliciter, without any enhancement proposal, it is always in the context of the appeal against an order of assessment and cannot be read to mean that the Appellate Authority granted powers to the Assessing Officer in relation to items of assessment which never formed part of the appeal before the Appellate Authority. (c) In T.C.(Appeal) No.885 of 2008 dated 04.04.2018, the Division Bench of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of passing fresh order of assessment in pursuant to the remand by the Tribunal. Certainly, the above act of the Assessing Officer is impermissible under law and consequently, cannot be justified or sustained. No doubt, the learned counsel for the Revenue contended that all the issues are interlinked. I do not find any pleading to that effect in the counter filed herein or advancement of argument before the Tribunal. Hence, such contention is liable to be rejected. 17. Thus, this Court is of the view that the assessment made by the Assessing Officer in respect of those two issues viz., income from Short Term Capital Gains under Section 111A and Brought/Forward losses for the assessment years 2006-2007 to 2009-2010 cannot be sustained as valid in law, since such exercise was beyond the scope of the order of remand. 18. However, while considering the issue which was agitated by the Assessee before the Appellate forums viz., Income from Short Term Capital Gains other than under Section 111A and consequential addition of ₹ 25,05,304/- is concerned, it is the specific case of the petitioner that the Assessing Officer has changed the head from Short ..... X X X X Extracts X X X X X X X X Extracts X X X X
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