2006 (2) TMI 157

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..... s justified in setting aside of an order passed by the Commissioner under section 263 of the Income-tax Act without giving any finding mush less categorical finding as to how and on what basis the case of the assessee falls in the excepted categories as defined under section 40A(3) read with clause (j) of rule 6DD of the Income-tax Rules, 1962? 2. In an order of reversal, was it not obligatory upon the Tribunal to have given a categorical finding of fact that the assessee has satisfied the requirement of the concerned section i.e., section 40A(3) read with clause (j) of rule 6DD of the Income-tax Rules, 1962, by giving cogent explanation thereby disentitling the Commissioner from invoking the provisions of section 263 and holding it to be .....

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..... tem, it is their legal duty rather legal obligation to deal with and discuss the issues of fact in detail and then give categorical finding for their eventual conclusion. A casual approach while deciding the issue exhibits non-application of mind. It is much more so when the factual finding recorded by the Commissioner of Income-tax (Appeals) is assailed specifically by the appellant in the appeal on the facts. It must appear from the order that sincere efforts were made to go into the factual arena and then keeping in view the legal position applicable to the facts of the case, a categorical finding is recorded by the Tribunal. This court exercising appellate powers under section 260A of the Act cannot travel in facts, nor can it appreciat .....

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..... y proceeded to allow the appeal by granting benefit. We cannot countenance such approach. It is neither legal nor proper. Accordingly and in view of the foregoing discussion, we allow the appeal and set aide the impugned order. As a consequence and keeping in view the facts involved, we remand the case to the Tribunal for again deciding the appeal afresh within six months on the merits keeping in view the aforementioned observations. Needless to say, we do possess the power to remand the case under section 260A ibid and in this case, a case for remand is called for. Parties to appear before the Tribunal on March 20, 2006, so as to enable the Tribunal to decide the appeal as directed. No costs. - - TaxTMI - TMITax - Income .....

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