9911796707
TMI Blog2015 (7) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... cer to examine the issues and decide appeal accordingly. As rightly contended by the Revenue, the Assessing Officer does not have the power to re-visit the assessment again and cannot gain the power from the order of CIT(A), which is not according to the provisions of Income Tax Act, 1961. In view of this, we have no hesitation in setting aside the order of CIT(A) and restore the appeal to the file of CIT(A) to consider it afresh and pass appropriate order on merits after examining assessee's contentions. He should also give a finding whether the assessment was re-opened within four years or after four years and if so, should analyze the applicable case law and the provisions of the Act to give a finding whether assessment order can be uphe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment year, whereas CIT(A) records in para 4 that it was re-opened after four years from the end of assessment year. However, what is peculiar in the order of the CIT(A) is that when assessee relied on the decision of ITAT, Hyderabad in the case of Gowri Gopal Hospital Vs. ITO in ITA No.1330/Hyd/2013, as similar facts are applicable in the case of assessee, Ld.CIT(A) given decision as under: 4.2 In the appeal the appellant only pressed the ground of reopening on the ground that it was an audit objection and had relied on the decision of the Hon'ble ITAT in the case of M/s. GowriGopal Hospital Vs. ITO in ITA No.1330/Hyd/2013 and did not press ground No.2 and 3 i.e., the issue of depreciation and share application money. Hence, these i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue any direction for further enquiry and passing of the consequential order. 4. The Ld.CIT(A) ought to have appreciated the fact that the Assessing Officer does not have the power to revisit the assessment again on the concluded assessment and cannot gain the power from the order of the CIT(A) which is not authorized by the provisions of the Income Tax Act, 1961. 5. In view of the above, in the instant case, Ld.CIT(A) has erred on facts and in law in directing the A.O. to compare the facts, circumstances and issue involved in the case of the assessee with that of M/s. Gowri Gopal Hospital case and if the facts, circumstances and issue are same, then allow the appeal of the assessee. 6. The Ld.CIT(A) erred in passing the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enditure and having accepted during the original assessment, when a scrutiny has taken place it was not open to the assessing officer to re-examine. Any such attempt on the part of the assessing officer would be based on only a change of opinion. It was held that reopening of assessment even within four years would not be permissible. 3. The respondent requests the honourable tribunal to dismiss the appeal filed by the department . 6. After considering the detailed objections of the Revenue and assessee, we are unable to uphold the order of CIT(A). Provisions of Section 251(1) are to be examined in order to consider whether the order of CIT(A) is correct or not. Provisions of 251(1) are as under: Section 251. (1) In disposing of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 251(1)(a) only. He can not delegate the same to AO. We are afraid that if this order of CIT(A) delegating his jurisdiction to AO is allowed, then in the guise of deciding issues, the matters will be set aside to AO, which is not permitted under the provisions. 8. Moreover, CIT(A)'s order indicates that he passed the order u/s.251(1)(c). As can be seen from the provisions, in the case of appeal against the order of assessment, he has to invoke the powers u/s.251(1)(a) and against penalty u/s.251(1)(b) and in any other case ie. any miscellaneous proceedings u/s.154 etc., he can invoke powers u/s.251(1)(c). The appeal preferred before the CIT(A) is against the order of assessment i.e., re-assessment u/s.147. Therefore, he should ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
