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TMI Blog2011 (10) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the case back to the assessing authority was illegal since it was a second remand by the Deputy Commissioner (Appeals); and the assessing authority had failed to pass appropriate assessment order after due enquiry in pursuance of earlier remand order of the Deputy Commissioner (Appeals) dated August 13, 1999. 2. The case appears to have a chequered history of the assessments including best judgment assessment and remands by the appellate authorities in assessment proceedings against one firm known as M/s. Mamraj Jagdish Kumar, 354, Vinoba Basti, Sriganganagar for assessment year 1994-95 (April 1, 1994 to March 31, 1995). The assessing authority found that real persons behind the persons, who were said to be running the said partne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 appeals and again remanded the case back to the assessing authority as the said appellate authority felt that the assessing authority had not fully complied with the directions given in the earlier remand order of the Deputy Commissioner (Appeals) dated August 13, 1999. The order of the Deputy Commissioner (Appeals) dated June 2, 2004 is annexure 2 in the present revision petition. 4. Being aggrieved of the same, the said Pawan Kumar Agarwal and Subhash Chand filed appeals before the Tax Board, which batch of 14 appeals came to be decided by the Division Bench of Tax Board, Ajmer on September 23, 2008, quashing the order of the Deputy Commissioner (Appeals) dated June 2, 2004. The learned Tax Board held that the Deputy Commissioner ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals filed by the assessee, the learned Tax Board could not have quashed such remand order of the Deputy Commissioner (Appeals) and closing the enquiry against the assessee and real partners, who were transacting the business in the name of the said assessee-firm, namely, M/s. Mamraj Jagdish Kumar. A great amount of revenue loss has been caused and the tax liability under the assessment framed against such real persons/partners, can never be recovered, if the order of the Tax Board is allowed to sand. He also urged that powers under section 85(11) of the Act dealing with powers of Tax Board, which stipulates that Tax Board may pass such orders on appeals as it thinks fit , does not empower the Tax Board to foreclose such enquiry during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be made in the matter. He also submitted that the subsequent assessment order made on January 2, 2007, for the assessment year 1995-96 in pursuance of the impugned order of the Deputy Commissioner (Appeals) dated June 2, 2004 was not even produced before the learned Tax Board yet a contention was raised that the appeals before the Tax Board had become infructuous, in view of the impugned order of the Deputy Commissioner (Appeals) having been complied with by the assessing authority; and even before this court, a question of law to this effect, has been framed by the Revenue for consideration by this court. 10. Having heard the learned counsel for the petitioner-Revenue and the respondents-assessee and upon perusal of material placed be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port the result of the same to the appellate authority and in disposing of the appeal the said authority may,- (a) In the case of an order of assessment, interest or penalty,- (i) confirm, enhance, reduce or annul the assessment, interest or penalty; or (ii) set aside the order of assessment, interest or penalty and direct the assessing authority to pass fresh order after such further enquiry as may be directed; and (b) In the case of any other order, confirm, cancel, vary or remand such order. 11. These provisions, therefore, clearly empower the Deputy Commissioner (Appeals) to even direct a remand of the assessment proceedings. There is no prohibition in law against a second remand order. Therefore, per se on a plain readi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e firm, which is prima facie, found to be a benami concern is a difficult terrain of enquiry and it might take quite some time for the assessing authority to compile the necessary adverse material against the real owners and confront them with the same after establishing that real partners of the said firm, where other persons claim to be the partners and, which could take its own time. 13. At the same time, it cannot be said that such enquiry could be endless or half-hearted on the part of the assessing authority. When such assessing authority has all the powers of a civil court including the powers under section 32 of the Code of Civil Procedure, which empowers him to compel the attendance of any person, to whom summons have been iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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