2011 (10) TMI 463

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..... pondent : Mr.J.Balachander for M/s.S.Sridhar J U D G M E N T P.JYOTHIMANI, J. This tax case appeal filed by the Revenue pertains to the assessment year 1992-1993 and is against the order the Appellate Tribunal dated 14.6.2004 made in ITA.No.497/Mds/1997, by which the Tribunal has allowed the appeal filed by the assessee partly. 2. This appeal was admitted by this Court for consideration of the following substantial questions of law: "1. Whether in the facts and circumstances of the case, the Tribunal was right in remitting the matter back to the Assessing Officer for reconsideration, when the provisions of Section 43B categorically say that unless bonus is actually paid within the time limit specified, it shall not .....

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..... "Section 43B. Certain deductions to be only on actual payment. Notwithstanding anything contained in any other provision of this Act a deduction otherwise allowable under this Act in respect of (a)... (b) ... (c) any sum referred to in clause (ii) of sub-section (1) of section 36" 3.3. Section 36(1)(ii) of the Act, which is as follows: "Section 36. Other deductions. (1) The deductions provided for in the following clauses shall be allowed in respect of the matters dealt with therein, in computing the income referred to in section 28 (i) ... (ia) ... (ib) ... (ii) any sum paid to an employee as bonus or commission for services rendered, where such sum would not have been payable to him as profits or di .....

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..... nt made, the point raised by the learned counsel for the Revenue is that the enhancement itself was made in the first appellate stage and therefore, the remand should have been made to the First Appellate Authority and not to the Assessing Officer. 5.2. On the other hand, on a reference to the order of the Commissioner of Income Tax (Appeals), it is clear that while ordering enhancement, the Commissioner of Income Tax (Appeals) had only directed the matter to be reheard by the Assessing Authority after giving fresh demand notice having regard to the enhancement. The relevant portion of the order of the Commissioner of Income Tax (Appeals) is as follows: "49. In the result, the appeal is disposed of resulting in the enhancement as in .....

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