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TMI Blog2015 (8) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment orders passed for the years 1990-91, 1991-92, 1992-93, 19934 and 1994-95 and remanded the case to make fresh assessment in terms of the remand order dated 30.1.2009, passed by the Tribunal in appeal for relevant years. Since the substantial questions of law raised in all the appeals are the same and the parties are also the same, the above appeals are being decided by a common judgment. Parties have filed their Written Statements which have been taken on record. In all the above appeals following substantial questions of law have been raised by the Appellant-Assessee for determination: (I) Whether the Tribunal has committed substantial illegality by not considering ratio of the cases referred by the appellant during the course of hearing as mentioned in para 39 and 40 of present appeal? (II) Whether under the facts and circumstances of the case Income-tax Appellate Tribunal was justified in upholding order dated 16.3.2012, passed under section 263 of the Income-tax Act in setting aside the order of the Assessing Authority dated 29.12.2009 which was admittedly apropos direction of the Tribunal under section 254 of the Act, that too, without recording any finding on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income-tax Department contended that the Assessment Officer has not complied with the directions given by the Tribunal in its judgment & order dated 30.1.2009. He has not examined the statistical details in view of section 11 of Income Tax Act, as directed by the Tribunal. Learned counsel for the Department contended that the Commissioner of Income-tax has given sufficient and cogent reasons for exercising power under section 263 of the Act and the order passed by him under section 263 of Income-tax is in accordance with law. The Tribunal has committed no illegality in upholding the order passed by the Tribunal. We have considered the submissions made by learned counsel for parties. Admittedly, the impugned assessment orders for the relevant years have been passed by the Assessment Officer in compliance of the judgment & order dated 30.1.2009, passed by the Income Tax Appellate Tribunal (hereinafter referred to as 'Tribunal') in Income-tax Appeal No. 302/Lucknow/2001/U.P. Forest Corporation vs. Addl. CIT, Special Range, Lucknow alongwith other connected appeals relating to the relevant years. Paras 52 and 54 of the judgment and order of the Tribunal are relevant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it shall not be included in the total income of the person in receipt of such income; (d) income in the form of voluntary contributions made with a specific direction that they shall form part of the corpus of the trust or institution. (Explanation- For the purposes of clauses (a) and (b)- (1) in computing the (fifteen) per cent of the income which may be accumulated or set apart, any such voluntary contributions as are referred to in Section 12 shall be deemed to be part of the income;" Para 2 of the Assessment Order passed by the Assessment Officer in compliance of judgment & order dated 30.1.2009, passed by the Tribunal is extracted below: "2. Hon'ble ITAT, vide its order dated 16.1.2009 in ITA No. 512/Luc/2007, has granted registration to the assessee u/s 12A of the Income-tax Act, 1961. The assessee , vide its written reply dated 29.12.2009, has claimed that in view of the said decision of Hon'ble ITAT, its entire income is exempt u/s 11 of the Income-tax Act, 1961. After a careful consideration of the material on record and in compliance with the Hon'ble ITAT's directions, exemption claimed by the assessee under section 11 is allowed and the returned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntained in its above judgment and order dated 30.1.2009 whereby case had been remanded for statistical purposes. In impugned order the Commissioner has rightly observed that the Assessment Officer did not at all examine or verify the contentions raised, did not examine the books of accounts and did not satisfy himself that the contentions for grant of exemption under section 11 were satisfied. In the case of Gee Vee Enterprises vs. Addl. Commissioner of Income-Tax, Delhi and others, (1975) 99 ITR 375 Delhi High Court has held as under: "The Income-tax Officer is not only an adjudicator but also an investigator. He cannot remain passive in the face of a return which is apparently in order but calls for further enquiry. It is his duty to ascertain the truth of the facts stated in the return when the circumstances of the case are such as to provoke an inquiry." In this case Delhi High Court has further held that "the word 'erroneous' in section 263 includes the failure to make such an inquiry. " In view of remand order dated 30.1.2009, passed by Tribunal as well as propositions laid down by Delhi High Court in above case we are of the considered opinion that the Assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n'ble High Court, Allahabad has held as follows: " The orders of the Income Tax Officer may be brief and cryptic, but that by itself is not sufficient reason to brand the assessment orders as erroneous and prejudicial to the interest of the Revenue. Writing an order in detail may be a legal requirement, but the order not fulfiling this requirement cannot be said to be erroneous and prejudicial to the interest of the Revenue. It was for the Commissioner to point out as to what error was committed by the Income-tax Officer in having reached the conclusion that the income of the trust was exempted in its hands and was assessable only in the hands of the beneficiaries." In the case of J.P. Srivastava and sons (Kanpur) Ltd. vs. Commissioner of Income Tax, U.P. (supra) the Division Bench of Allahabad High Court has held as under: "We are, therefore, of the opinion that without going into the merits of the claim of the assessee, it was not possible for the Commissioner to say that the order of the Income Tax Officer had caused any prejudice to the interests of the revenue and, as such, he was not competent to set aside the assessment order and remand the matter to the Income -tax O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-tax vs. Lucknow Development Authority, reported in (2014) 98 DTR 183 (All) (11) I.T.O. vs. Lucknow Development Authority in ITR No. 204/Luc/09 for Assessment Year 2005-06. (12) Anil Kumar Rastogi vs. Income-tax Officer, reported in [2011] 339 ITR 279 (All) We have perused these pronouncements and found that the propositions laid down in these decisions are also not helpful to assessee-appellant on the facts of the present case. In view of the discussion, made above, we are of the view that the impugned judgment & order passed by the Tribunal is in accordance with law and there is no illegality or infirmity in it. The Tribunal has rightly dismissed the appeals, filed by the Assessee- Appellant. The substantial questions of law, raised by the assessee-appellant have not been correctly framed and cannot be accepted. During course of arguments, learned counsel for the parties admitted that fresh assessment orders have already been passed by Assessment Officer in compliance of impugned orders of Commissioner passed under section 263 of the Act. If assessee is aggrieved with assessment orders, he has right of appeal in accordance with law. In view of the above, all the five pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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