2019 (5) TMI 1981 - AT - Income Tax

Addition u/s 68 - CIT(A) deleted the addition considering remand report as given by AO - whether the AO can appeal before the Tribunal against this order of the ld. CIT(A) which is only based on his remand report? - HELD THAT - AO in this case disputes his own finding in the remand report thus we hold that the AO 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. See Smt. B. Jayalakshmi 2018 (8) TMI 208 - MADRAS HIGH COURT and M/s Shraddha Tower Pvt. Ltd 2018 (10) TMI 1405 - ITAT KOLKATA - Decided against revenue.

Summary

Issues:
1. Dispute over addition u/s 68 of the Income Tax Act.
2. Jurisdictional issue: Can the Assessing Officer appeal against the order of the CIT(A) based on his remand report?

Issue 1: Dispute over addition u/s 68 of the Income Tax Act:
The appeal filed by the revenue challenges the CIT(A)'s decision to delete the addition u/s 68 of the Act for the Assessment Year 2012-13. The Assessing Officer disputed the CIT(A)'s decision but later accepted the submissions of the assessee based on a remand report under Rule 46A of the Income Tax Rules, 1962. The remand report confirmed the sufficiency and orderliness of the documentary evidence enclosed in the paper book. Consequently, the CIT(A) granted relief based on the remand report, leading to the appeal by the revenue.

Issue 2: Jurisdictional issue - Assessing Officer's appeal based on his remand report:
The key question is whether the Assessing Officer can appeal before the Tribunal against the CIT(A)'s order, which relies solely on his remand report. The Hon'ble Madras High Court and the Kolkata Bench of the Tribunal have provided relevant precedents. The Madras High Court emphasized that the Tribunal must consider the correctness of the order passed by the CIT(A) based on the remand report. It highlighted that if the appeal is based on the same findings as the remand report, it may be deemed incompetent. Similarly, the Kolkata Tribunal's decision in another case reiterated that if the AO accepts the claims after due verification and investigation, the appeal by the Revenue may not be maintainable.

Applying the legal principles established in these cases to the current scenario, the Tribunal held that the Assessing Officer cannot appeal against his own factual findings provided in the remand report. Therefore, the Tribunal dismissed the revenue's appeal as not maintainable, ultimately upholding the decision based on the remand report.

In conclusion, the judgment addresses the dispute over the addition u/s 68 of the Income Tax Act and delves into the jurisdictional issue of the Assessing Officer appealing against his own remand report-based decision. The Tribunal's analysis, guided by legal precedents, emphasizes the importance of maintaining consistency in the appeal process and respecting the findings of the remand report.