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TMI Blog2016 (10) TMI 1060X X X X Extracts X X X X X X X X Extracts X X X X ..... r with certain conditions. As gone through the order passed by the Ld. CIT(A) alongwith the provisions of section 251(1)(a) of the I.T. Act, 1961 as reproduced above and we are of the considered view that Ld. CIT(A) have no powers to set aside the matter to the AO which he has done in the impugned order. We find that Ld. CIT(A) has set aside the issue in dispute to the AO, is contrary to the provisions of law and not sustainable in the eyes of law. - Appeal filed by the Revenue allowed for statistical purposes. - ITA No.5698/Del/2012 - - - Dated:- 3-10-2016 - SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER For The Assessee : Shri Tarun K, Advocate For The Revenue : Shri N.K. Bansal, Sr. DR ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rifiable source was spent by it elsewhere, the assessee s contention that it was available with it as cash at hand cannot be rejected. The assessee s contention that, considering its turnover, it was entitled to presumptive determination of its income u/s 44AD and 44AE of the IT Act, has not been controverted or found as false by the A.O. Therefore, no adverse inference should be drawn if the assessee did not maintain regular books of account. 1.4 In such cases, accretion to assets in course of the previous year is a good guide to estimate the assessee s income. The assessee has furnished its statement of affairs as on 31.03.2008 as well as 31.03.2009, showing that the accretion to its capital account and assets during the previous ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded the cash available on that date. It is clarified that the finding is based on the premise that, considering its turnover, the assessee was entitled to presumptive determination of its income. If, in course of his examination, the A.O. is able to give a positive finding that the assessee s turnover exceeded what is claimed by it or that the assessee has capitalized profit in excess of what has been offered to tax by it, he will be entitled to deny the benefit of presumptive determination of income and/or assessee the excess income thus capitalized by it. 3. Aggrieved with the aforesaid finding of the Ld. CIT(A), the Department preferred an appeal before the Tribunal. The Tribunal vide order dated 18.1.2013 has adjudicated the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal filed by the department is dismissed. 4. Against the Tribunal s order dated 18.1.2013, the Revenue filed an Appeal being Income Tax Appeal No. 17 of 2013 before the Hon ble High Court of Uttarakhand at Nainital and the Hon ble High Court Of Uttarakhand at Nainital vide its order dated 25.10.2013, has set aside the order of the Tribunal by observing as under:- The matter is remitted back to the Tribunal for the purpose of determination, whether, in view of the provisions contained in Section 251 of the Income Tax Act, 1961, the Appellate Authority had the power of remanding the matter for reassessment of the increase / addition, as was appealed against the order of the Assessing Officer? 5. Pursuant to the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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