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2019 (12) TMI 155

..... the Tribunal to the AO vide order dated 10.03.2011 was a complete and wholesale remand for framing a fresh assessment. The remand was not limited in its scope and was occasioned upon the Tribunal finding the approach of the AO and the CIT (A) to be excessive, harsh and arbitrary. The earlier assessment had been framed on the basis of Best Judgment without examining the books of accounts of the assessee, which the assessee has claimed were available. That being the position, the AO ought to have evaluated the claim made by the assessee for write-off of liability by Canara Bank in its favour amounting to ₹ 1,36,45,525/-, and should not have rejected the same merely on the ground of it being raised for the first time. The reliance placed .....

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..... in law, the ITAT erred in not appreciating that the earlier remand order of the ITAT was a de novo remand order and not specific to any issue and therefore the appellant could have raised a fresh claim before the AO in the set aside proceedings? 2. We have heard learned counsels and proceed to answer the aforesaid questions. The Assessing Officer passed the assessment order in respect of the assessment year 2002-03 under Section 144 of the Income Tax Act on 30.03.2005. Eventually, on 07.01.2009, the Income Tax Appellate Tribunal (ITAT) set aside the matter to the file of the Assessing Officer to adjudicate afresh after considering the documents and submissions of the assessee. The Assessing Officer then passed a fresh assessment order on 0 .....

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..... tion to be fair and judicious. In view of these facts and circumstances, we are of the view that the present assessment being excessive, harsh and arbitrary, deserves to be set aside, restored back to the file of AO to reframe the same afresh. Assessee is willing to produce the books of account which are to be considered after affording an opportunity to the assessee. In an eventuality where best judgment assessment is inevitable, then fair and reasonable approach as warranted by law has to be adopted by lower authorities, which the AO will keep in mind while reframing the assessment. We order accordingly. 4. On this occasion, the Assessing Officer deleted the additions and the disallowances made in the first two rounds. A fresh addition of .....

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..... roceedings and restored back to the Assessing Officer, no longer existing in this appeal, which means the Assessing Officer has allowed relief to the assessee on those issues. 9. But in remand proceeding before the Assessing Officer, consequent to the second order of the Tribunal dated 10/03/2011, the assessee made a fresh claim for allowing deduction of ₹ 1,36,45,525/- being the liability of the Canara bank, written back by the company as same should not be treated as income of the assessee. The question before us is whether the assessee should be allowed to make fresh claim of deduction in remand proceedings and that too in second round of remand by the Tribunal. 6. The Tribunal went on to answer the question raised by it against th .....

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..... on Sehet Synthetics P. Ltd. (supra) was also misplaced in view of the complete remand in the present case. He further submits that, in fact, the Assessing Officer had also made fresh additions while passing the fresh assessment order, precisely on the same basis that a fresh assessment was being framed. Else, the Assessing Officer could not have made fresh additions of ₹ 40,045/- towards late deposit of employees contribution towards PF and ESI, and could not have disallowed set-off of the brought forward losses to the extent of ₹ 2,14,35,459/. 9. On the other hand, Ms. Malhotra submits that the Assessing Officer had not examined the merits of the fresh claim made by the assessee regarding non-taxability of income arising from w .....

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