TMI Blog2019 (5) TMI 1981X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue. - I.T.A. No. 1753/Kol/2017 - - - Dated:- 10-5-2019 - SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER For the Appellant : Shri Miraj D. Shah, A/R For the Respondent : Shri C.J. Singh, JCIT Sr. Dr. ORDER Per J. Sudhakar Reddy, AM :- This appeal filed by the revenue is directed against the order of the Learned Commissioner of Income Tax (Appeals) - 16, Kolkata, (hereinafter the ld.CIT(A) ), passed u/s. 250 of the Income Tax Act, 1961 (the Act ), dt. 28/02/2017, for the Assessment Year 2012-13. 2. The Assessing Officer in this case has disputed the decision of the ld. CIT(A) deleting the addition u/s 68 of the Act. The ld. CIT(A), in this case has called for a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider the correctness of the order passed by the CIT (A) and if had been done in a proper prospective, the Tribunal would have noticed that the order allowing the assessee's appeal by the CIT (A) was based on the remand report. If this had been taken note of, the Tribunal would have to consider as to whether the appeal by the Revenue was maintainable before it. In the case of Jivatlal Purtapshi (supra), it was held that the department having agreed to delete the amount from the assessment and having considered the deletion before the Appellate Assistant Commissioner, cannot be aggrieved by that part of the order to enable it to file an appeal before the Tribunal and therefore, such an appeal, neither competent nor capable of being ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as stated that he has verified all the documents and evidences furnished by the assessee in support of its claims. No adverse observations were made by the AO in the remand report. The claim of the assessee was accepted as correct. Under the circumstances, the ld. CIT(A) based on this remand report by the A.O, granted relief in this case. The ld. CIT(A) held as follows :- I have considered the finding of the AO in the assessment order as well as in the remand report along with the written submission filed by the AR during the appellate proceedings, I have also considered comments of the Addl.CIT on the remand report and the written submission filed by the AR on such comments as well. I find that the AO himself has reported in the remand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient to acquire assets existed in the right side of the balance sheet in each case and each assessment year . From the remand report of the AO, it is clear that the AO had accepted after due verification, the existence and creditworthiness of companies which have given advance to the assessee. The AO has also made investigation and given his findings that each entry of advance taken and given was verified from the bank account. From the report it is also clear that the balance of advance existed at the end of the financial year was sufficient to acquire assets existing in the right side of the balance sheet in each case and in each assessment year. Keeping in view the categorical findings given by the AO after due verification of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon a remand report - Held, yes [Paras 19, 23 and 24] [In favour of assessee/Matter remanded] 10. The E Bench of Delhi ITAT in the case of ACIT vs R.P.G.Credit capital Ltd. (supra) had taken a similar view. 12. Be as it may, the ld. DR could not bring out any material to controvert the factual findings given in the remand report of the AO. Thus on this ground also the appeal of the revenue fails 4. Applying the proposition of law laid down in these case laws to the facts of the case, we hold that the Assessing Officer cannot file an appeal against his own factual finding given by him in the remand report. Hence we dismiss this appeal of the revenue as not maintainable. 5. In the result, appeal of the revenue is dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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