2012 (7) TMI 146 - HC - Income Tax

Justification of power of CIT(A) in restoring the matter back to the file of AO - revenue contested that considering the amendment in section 251(1)(a)Commissioner (Appeals) may not set aside the assessment and refer the case back to the AO for making fresh assessment - Held that - CIT(A)in his impugned orders has not passed an order as if he was setting aside the order of assessment and referring the matter back to the AO for making fresh assessment in accordance with his directions as the ITAT in its orders dated 22.11.2001 and 23.11.2001 restored the question of claim of higher depreciation to the file of AO for decision afresh after inspection of the building wereas the CIT(A) found that such directions of ITAT had not been complied with. The directions of ITAT were in any case required to be complied with by the AO and CIT(A)in fact had done nothing more than issuing directions for implementation of the order of the ITAT. In this position, when the CIT(A) was hearing the appeal against an order of assessment passed after the directions of ITAT, his power to annul the assessment order if found contrary to the ITAT s directions and directing the AO to carry out the requirements of the order of ITAT cannot be denied - considering the amendment in section 251(1)(a)it cannot be assumed that the CIT(A) is divested of the power to annul the assessment and then to pass appropriate consequential order. Even if the appeal had been filed after amendment to section 251(1)(a) the order as passed by the CIT(A) directing the AO to decide the matter in accordance with the directions of the ITAT cannot be said to be unauthorized - against revenue.

Summary

Issues Involved:
1. Power of Commissioner (Appeals) to remand cases after amendment to Section 251(1)(a) of the Income-tax Act, 1961.
2. Compliance with ITAT directions by the Assessing Officer.
3. Validity of CIT(A)'s orders directing AO to follow ITAT directions.
4. Rectification applications under Section 154 of the Income-tax Act, 1961.

Detailed Analysis:

1. Power of Commissioner (Appeals) to Remand Cases:
The core issue revolves around whether the Commissioner (Appeals) ["CIT(A)"] had the authority to remand cases to the Assessing Officer ["AO"] after the amendment to Section 251(1)(a) of the Income-tax Act, 1961, which took effect on 01.06.2001. The amendment removed the explicit power of the CIT(A) to set aside assessments and refer cases back to the AO for fresh assessment. The revenue argued that the CIT(A) overstepped his authority by remanding the matter to the AO after this amendment. However, the court held that the CIT(A) did not issue a remand in the traditional sense but rather directed the AO to comply with the ITAT's prior directions. The court emphasized that the CIT(A)'s actions were in line with ensuring compliance with the ITAT's orders, which had already become final and binding.

2. Compliance with ITAT Directions by the Assessing Officer:
The background of the case shows that the ITAT had previously remanded the matter to the AO with specific directions to inspect the building and determine whether it qualified as a plant for depreciation purposes. The AO, however, failed to comply with these directions adequately. The CIT(A) found that the AO did not conduct the necessary inspections or properly appraise the facts as directed by the ITAT. Consequently, the CIT(A) directed the AO to carry out the ITAT's instructions properly, which the court found to be justified.

3. Validity of CIT(A)'s Orders Directing AO to Follow ITAT Directions:
The court upheld the CIT(A)'s orders from 29.04.2004, which directed the AO to comply with the ITAT's directions. The court noted that the CIT(A) was not issuing a fresh remand but was ensuring the AO followed the ITAT's binding directions. The court referenced the Supreme Court decision in S. Shanmugavel Nadar v. State of Tamil Nadu, which supports the view that appellate authorities retain the power to annul decisions and issue consequential directions. The court concluded that the CIT(A)'s actions were within his statutory powers and necessary to enforce the ITAT's orders.

4. Rectification Applications under Section 154:
The revenue's rectification applications under Section 154, which sought to challenge the CIT(A)'s orders, were also dismissed by the ITAT. The court found no infirmity in the ITAT's decision to uphold the CIT(A)'s rejection of these applications. The court noted that the CIT(A)'s directions were in compliance with the ITAT's previous orders and did not constitute a simple set-aside, which would be barred by the amended Section 251(1)(a). Thus, the court affirmed the ITAT's decision that the CIT(A) acted within his legal authority.

Conclusion:
The court dismissed all the appeals filed by the revenue, affirming the CIT(A)'s orders directing the AO to comply with the ITAT's directions. The court clarified that the CIT(A) retained the power to ensure compliance with ITAT orders, even after the amendment to Section 251(1)(a). The rectification applications under Section 154 were also rightly rejected, as the CIT(A)'s directions were lawful and necessary to enforce the ITAT's binding decisions.