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income-tax Officer Vs. Maneklal Ramanarayan - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Ahmedabad
Decided On
Judge
Reported in(1984)8ITD735(Ahd.)
Appellantincome-tax Officer
RespondentManeklal Ramanarayan
Excerpt:
order of tribunal--giving effect by assessing officer.in the circumstances of order of the tribunal for restoration of case to commissioner (appeals), the assessing officer could not pass an order giving effect's to the tribunals order.the tribunal in appeal filed by the assessee set aside the order of the commissioner (appeals) with a direction that issue under appeal be reframed and redecided. the commissioner (appeals) having been seized with the matter, the income tax officer could only make a request to him to expedite his decision. the income tax officer was, therefore, not justified in giving effect to the tribunal's order as if his original order was restored.tribunal--appellate order of tribunal--ito giving effect to tribunal's order whereby case restored to commissioner(appeals).....
Judgment:
ORDER OF TRIBUNAL--Giving effect by assessing officer.

In the circumstances of order of the Tribunal for restoration of case to Commissioner (Appeals), the assessing officer could not pass an order giving effect's to the Tribunals order.

The Tribunal in appeal filed by the assessee set aside the order of the Commissioner (Appeals) with a direction that issue under appeal be reframed and redecided. The Commissioner (Appeals) having been seized with the matter, the Income Tax Officer could only make a request to him to expedite his decision. The Income Tax Officer was, therefore, not justified in giving effect to the Tribunal's order as if his original order was restored.

Tribunal--APPELLATE ORDER OF TRIBUNAL--ITO giving effect to Tribunal's order whereby case restored to Commissioner(Appeals) with certain directions.

Where the Tribunal had set aside the order passed by Commissioner(Appeals) with certain directions to comply with, the assessing officer cannot give effect to such appellate order as if his original order was restored.

The Tribunal in appeal filed by the assessee set aside the order of the Commissioner(Appeals) with a direction that issue under appeal be reframed and redecided. The Commissioner(Appeals) having been seized with the matter, the assessing officer could only make a request to him to expedite his decision. The assessing officer, was therefore, not justified in giving effect to the Tribunal's order as if his original order was restored.

1. The appeal filed by the revenue and the cross-objection filed by the assessee against the order of the AAC are disposed of together for the sake of convenience.

2. The original assessment for the year under appeal was framed on 24-11-1969. Thereafter, the ITO had reopened the assessment under Section 147(a) of the Income-tax Act 1961 ('the Act'), with a view to bring to tax Rs. 80,275, being refund of sales tax for the past years received by the assessee. After following the prescribed procedure under the Act, the ITO framed the assessment under Section 143(3)/147(a) of the the Act, whereby he brought to tax Rs. 80,275.

Against the said order of the ITO, the assessee went up in appeal. The Commissioner (Appeals) in his appellate order held that the reopening of the assessment under Section 147(a) was bad in law. He, therefore, set aside the order of the ITO framed under Section 143(3)/147(a). In this view of the matter, he did not give any finding on the taxability of the amount of refund of Rs. 80,275.

3. Against the said order of the Commissioner (Appeals), the revenue came up in appeal before the Tribunal with a grievance that the Commissioner (Appeals) should have held that the reopening made by the ITO was justified. The assessee also filed cross-objections wherein it urged that the Commissioner (Appeals) should have decided on the merits of the taxability of the refund of Rs. 80,275.

4. The Tribunal, after considering the rival submissions of the parties, vide its order dated 19-2-1981 in IT Appeal No. 869 (Ahd.) of 1970 disposed of the appeal/cross-objections as under: 9. Considering all the aspect, in our view, the correct decision would be to set aside the entire order of the Commissioner (Appeals) with a direction that he should come to the correct conclusion factually with regard to the balance sheet furnished to the department at the time of original assessment and then after giving an adequate opportunity to both the parties to come to a conclusion whether the assessment was rightly reopened under Section 147(a). He should also give his conclusion regarding other points raised by the assessee in view of the facts that the order with reference to the ITO's jurisdiction under Section 147(a) is being challenged.

10. We, accordingly, set aside the order of the Commissioner (Appeals). The appeals and the cross-objection are treated as allowed, It appears, that when the Commissioner (Appeals) passed his order, the ITO gave effect to the said order and reduced the income of the assessee by Rs. 80,275. Further, on receipt of the order of the Tribunal dated 19-2-1981, the ITO passed an order as under: In view of the Tribunal's order No. 869 (Ahd.) of 1917, dated 19-2-81, the Tribunal has set aside order of the Commissioner (Appeals) order No. CIT(A)-VI/IV/-A/0181, dated 21-2-1978. In view of this the ITO's order dated 31-3-1977 stands and total income now determined at Rs. 1,82,065.

Please issue revised demand notice and challan accordingly.

Rs.Total income as per order dated 30-3-1979 1,01,790Add: Reduction allowed by Commissioner (Appeals) 80,275Total income 1,82,065 5. Being aggrieved by the order of the ITO dated 15-7-1981, the assessee once again went up in appeal before the AAC who set aside the order of the ITO dated 15-7-1981, in the following manner: This appeal is directed against the order of the ITO giving effect to the Tribunal's order.

2. The facts of the case are that in the case of the appellant, the appellant had filed an appeal against the order of the learned Commissioner (Appeals) to the learned Tribunal. The learned ITAT vide their order dated 19-2-1981 has set aside the order of the learned Commissioner (Appeals) with the directions that the issue under appeal is to be reframed and redecided. It is the contention of the appellant that while the matter was restored to the Commissioner (Appeals), it would not be proper for the ITO to give effect to the order of the learned Tribunal as if the ITO's original order was restored.

5. I would fully agree with the contention of the appellant's representatives that the order of the learned Tribunal quoted above makes it clear that they had restored the appeal back to the Commissioner (Appeals) for reconsideration and redecision. Under such circumstances, it would not be said that the order of the ITO stood revised. The order of the ITO giving effect to the Tribunal's order erroneously is, therefore, set aside.

6. This time the revenue was aggrieved by the order of the AAC and, therefore, it has come up in appeal before the Tribunal. The learned representative for the department vehemently argued that the ITO was fully justified in passing the order dated 15-7-1981 as the Tribunal has set aside the order of the Commissioner (Appeals). According to the learned representative for the department, once the Tribunal had set aside the order of the Commissioner (Appeals), the assessee was once again liable to tax in respect of the refund of sales tax of Rs. 80,275. He further stated that it was not necessary for the ITO to wait for the order of the Commissioner (Appeals) who had been directed by the Tribunal to pass a fresh order in respect of the points raised in the appeal. The learned counsel for the assessee, on the other hand, relied on the order of the AAC and justified his action.

7. We have carefully considered the rival submissions of the parties and we are constrained to observe that the revenue has unnecessarily brought this appeal before the Tribunal. It would appear from the above that the Tribunal had not set aside the order of the Commissioner (Appeals) in a sense that the ITO's order is restored. On the contrary, it had restored the matter to the file of the Commissioner (Appeals) with the direction to pass a fresh order on the appeal preferred by the assessee before him. Under these circumstances, we fail to appreciate under what provisions of the law the ITO deemed it fit to pass an order with the caption 'order giving effect to the Tribunal's order'. Since the Commissioner (Appeals)/AAC was seized with the matter, it would have been better for the ITO to make a request to him to expedite his decision instead of precipitating the matter in the manner he did in the present proceedings. Since we do not find any infirmity in the order of the AAC under appeal, we have no hesitation in upholding the same. In this view of the matter, the cross-objection filed by the assessee supporting the action of the AAC has become infructuous.

8. In the result, both the appeal as well as the cross-objection are dismissed.


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