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TMI Blog2015 (3) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... ct despite the Tribunal being the final fact finding authority? [B] Whether the Appellate Tribunal has substantially erred in remitting the issue of disallowance of claim of revenue expenses of Rs. 3,10,49,616/- to the file of Assessing Officer without giving any independent finding and cogent reasons as to how the CIT (Appeals)'s finding were incorrect despite the Tribunal being the final fact finding authority? [C] Whether the Appellate Tribunal has substantially erred in disallowance of claim, rebate and reversal of claims of Rs. 3,92,66,819/- to the file of Assessing Officer without giving any independent finding and cogent reasons as to how the CIT (Appeals)'s finding were incorrect despite the Tribunal being the final fact f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal recorded the finding at para 9, which reads as under: "9. We have heard the rival submissions and perused the material on record. We find that AO has noted that assessee was asked to justify the claim of loss, which assessee had failed to do. Further, assessee did not produce the books of accounts for examination by AO. We also find that even before CIT (A), no material has been placed on record by the assessee to substantiate its claim of loss. It is a fact that in the absence of details the entire gross profit has been disallowed by AO which we feel is unjustified. Before us, ld. A.R. has submitted that working of gross profit at paper book page 20 according to which the gross profit is at 4.14%. Since, this detail of working ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued calling upon the assessee to produce certain documents and the assessee failed to produce the document, the power by the AO was required to be exercised judiciously to examine and to find out to what extent, the disallowance could be made, but it could not be to the fullest extent that too without any discussion and on a mere ground that the assessee failed to produce the document in support thereof. The aforesaid aspect was not appreciated in the appeal and therefore, the Tribunal has remanded the matter. It is not that in every case, the Tribunal may examine the material on its own if there is failure to consider the material by AO or in appeal by the CIT (Appeals). Had it been a case where some material was considered and a finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not produced any material before AO or CIT (A) in support of his claim. Before us, it is ld. A.R.'s submission that it had already made the disalloawance. Since, the aforesaid submission has not been examined by AO, we feel that this factual aspect needs reexamination. We, therefore, remit the matter back to the file of AO for ascertaining the factual position. If the submission of ld. A.R. Is found correct, then the addition made be deleted. The assessee is also directed to submit all the required details before AO. In case, the assessee fails to furnish the required details, A.O. Is free to decide the matter on the basis of material on record. Thus, this ground of assessee is allowed for statistical purposes." 9. We find that consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the assessee fails to furnish the required details, A.O. shall be free to decide the matter on the basis of material available on record. Thus, this ground of assessee is allowed for statistical purposes." 11. The aforesaid shows that the Tribunal having found that the examination was required on the part of the AO to decide the issue in light of the decision of the Apex Court in case of TRF Limited (supra) and therefore, the discretion has been exercised for sending the matter back to the AO. Such an exercise of discretion cannot be said to be perverse. No substantial questions of law would arise for consideration as canvassed. 12. On question D, the AO disallowed the claim in absence of the evidence produced. In appeal before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id as perverse. No substantial questions of law would arise as canvassed. 14. On question E, the AO disallowed the claim for deduction of interest. In the appeal before the CIT (Appeals), no interference was made to the approach of the AO. Whereas the Tribunal in the further appeal observed at para 34 as under: "34. We have heard the rival submissions and perused the material on record. Before us, Id. A.R. has submitted that the investments were made out of interest free funds and not borrowed funds and on the other hand, we find that ClT (A) has given finding that assessee does not have any surplus funds. In view of the contrary facts, we are of the view that the factual position needs to be re-examined. We, therefore, remit the matter t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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