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TMI Blog2013 (10) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Sales Tax element was or was not deposited by the assessee with the Government and to decide the assessee's tax liability to pay tax - Decided in favour of assessee. - TAX APPEAL NO. 340 of 2012 - - - Dated:- 25-2-2013 - AKIL KURESHI AND SONIA GOKANI, JJ. For the Appellant : Manish J. Shah. For the Respondent : Manav A. Mehta. ORDER:- PER : Akil Kureshi The assessee is in appeal against the judgment of the ITAT, Dated 16.11.2011. 2. While issuing notice on 03.12.2012, we have made following observations, "4. Prima facie, we are of the opinion that the Tribunal's previous order dated 30.8.2005 had made certain conclusive observations with respect to the nature of transaction and had desired that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee. On such basis, the Tribunal remanded the proceedings before the CIT(Appeals) "to decide the matter afresh, in accordance with law, keeping in view the above observations and after affording the reasonable opportunity of hearing to both the sides." 5. In the remand proceedings, the CIT(Appeals) decided the entire issue in favour of the Revenue. Instead of confining its inquiry with respect to three per cent of Sales Tax, he examined the very nature of the transaction between the assessee and the Swamy Chemicals. He was of the opinion that the payments were made from Swamy Chemicals by cheque, but, the same were returned by the assessee through cash payments. On such basis, he justified the addition made by the Assessing Officer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Government, surely, the same would become the income of the assessee. The Tribunal also observed that if such Sales Tax was deposited with the Government, there would be no question of taxing the assessee. On such basis, the proceedings were remanded for fresh consideration by the CIT(Appeals). 10. To our mind, the Tribunal did not permit the full-fledged fresh inquiry by the CIT(Appeals) in such remand proceedings. This is clear from the following facts; (1) The Tribunal's conclusion to the effect that the question of taxing three per cent would arise only after verifying, whether the Sales Tax was retained by the assessee or deposited with the Government, if it was already deposited with the Government, then, the question of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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