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2012 DIGILAW 684 (JHR)

Kashmir Vastralaya Collections, Ranchi v. Commissioner of Income Tax, Ranchi

2012-05-02

APARESH KUMAR SINGH, PRAKASH TATIA

body2012
JUDGMENT By Court.- Heard learned counsel for the parties. 2. The following main substantial question of law is involved in this appeal : “Whether in the facts and circumstances of the case, the learned Tribunal exceeded its jurisdiction in restoring the matter back to the file of the Assessing Officer for de novo assessment when the impugned order passed under Section 263 of the Income Tax Act, 1961 by the Commissioner of Income Tax was held to be unsustainable in law ?” 3. Learned counsel for the appellant submitted that the learned Commissioner of Income Tax set aside the order of assessment in review and learned Tribunal by the impugned order dated 11th July, 2011 held that Commissioner of Income Tax could not have set aside the assessment order on the ground that assessment has not been conducted by the Assessing Officer in the way in which the Commissioner of Income Tax found to be the proper way. Thereafter, the Tribunal without assigning any reason and without upholding any of the reasons given by the Commissioner of Income Tax straightway held that in view of the totality of the reasons given in the order of Commissioner of Income Tax, the Assessing Officer may proceed with the denovo assessment. It is submitted by the learned counsel for the appellant that once the Tribunal held that the assessment could not have been interfered by the Commissioner of Income Tax, then in that situation the Tribunal should not have dismissed the appellant's appeal and the order passed by C.I.T. should not have been maintained. 4. Learned counsel for the Revenue submitted that Commissioner of Income Tax has given detailed reasons in the order which was for consideration before the Tribunal in the appeal preferred by the assessee petitioner and, therefore, in view of the above reasons, the Tribunal held that the Assessing Officer may proceed to assess the case of the petitioner. 5. We have perused the reasons given by the Commissioner of Income Tax as well as the reasons given by the Tribunal. The following is the order passed by the Tribunal : “On careful analysis of the order passed by the ld. CIT and analyzing the same in the light of the rival submissions of both the parties, it is found that the ld. The following is the order passed by the Tribunal : “On careful analysis of the order passed by the ld. CIT and analyzing the same in the light of the rival submissions of both the parties, it is found that the ld. CIT has found fault with the way of approach taken by the Assessing Officer in processing the return of the assessee. But finally he has established that the order of assessment passed under Section 143(3) was erroneous in so far as it was prejudicial to interest of revenue. Therefore, we are of the considered view that simply because the Assessing Officer has not done the assessment in the way in which ld. CIT found to be proper cannot be a ground for revise the order of the Assessing Officer and consequently cancelled the order of the Assessing Officer. Since Ld. CIT has found that way of approach adopted by Assessing Officer is not correct in the facts and circumstances of the case but at the same time since ld. CIT has not given any finding as to how the assessment order is erroneous and how it resulted in prejudicial to the interest of revenue, the impugned order is not sustainable. However, taking into consideration the totality of the facts and circumstance of the case, we are of the considered view that this is a fit case to be restored to the file of Assessing Officer for denovo assessment in the light of the observation made by the ld. CIT in the impugned order strictly following the principles of natural justice. The assessee is hereby directed to cooperate with the Assessing Officer to dispose of the matter. Accordingly, the matter is restored to the file of Assessing Officer for denovo assessment.” 6. It is clear from the above order of the Tribunal that the Tribunal observed that the Commissioner of Income Tax found fault with the way of approach taken by the Assessing Officer in processing the return of the assessee and that cannot be a ground for reviewing of the assessment order. After this finding, the Tribunal immediately observed that taking into considering totality of the facts and circumstances of the case and observations made by the Commissioner of Income tax, which has been passed strictly following the principles of natural justice, therefore, the Assessing Officer may dispose of the matter. 7. After this finding, the Tribunal immediately observed that taking into considering totality of the facts and circumstances of the case and observations made by the Commissioner of Income tax, which has been passed strictly following the principles of natural justice, therefore, the Assessing Officer may dispose of the matter. 7. It appears that Tribunal was under impression that even if any illegal order is passed after giving opportunity of hearing to the parties, then that order become valid only because of the following of principles of natural justice. Only one of the aspects has been considered by the Tribunal in the order dated 11th July, 2011 and that was the reason given by the Commissioner of Income Tax in its order, wherein the Commissioner of Income tax observed that the Assessing Officer has not conducted the assessment proceeding properly. However, other reasons have not been considered by the Tribunal in its order dated 11th July, 2011 and , therefore, it appears that said mistake has been committed by the Tribunal of not giving the reasons for maintaining the order of the Commissioner of Income Tax, which has been impugned before the Tribunal. 8. Therefore, this appeal is allowed and the order dated 11th July, 2011 passed by the Tribunal is set aside and matter is remanded to the Tribunal for passing afresh order. Appeal allowed.