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TMI Blog2018 (12) TMI 1596X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer and the CIT(A). The operative portions of the orders passed by both the Assessing Officer and the CIT(A) do not contain any mention about the said Circular. In effect, the parameters required to be examined by the Assessing Officer under the said Circular were examined and in the opinion of the AO, the case of the assessee cannot be accepted. This was reversed by the CIT(A). Therefore, the Tribunal can very well decide the correctness of the order passed by the CIT(A) instead of remanding the matter to the Assessing Officer for a fresh consideration, as, already, such an exercise was done by the Assessing Officer. Furthermore, the order of remand passed for the assessment year 2009-10 is now pending before the Dispute Resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factual finding of the Appellate Authority in ITA.No.157/ 2013-14 dated 03.2.2016 wherein it is specifically held that there is no splitting up and reconstruction as contemplated in CBDT circular No.1 of 2013 and as such, the impugned order of the Tribunal once again remanding the issue to re-examine the very same aspect is unwarranted and unsustainable? TCA.No.881 of 2018 : i. Whether in law, the Tribunal was right in remanding the issue of deduction under Section 10A of the Act back to the files of the respondent to examine the issue in the light of CBDT Circular No.1 of 2013 without appreciating that the said exercise has already been undertaken by the respondent vide order passed under Section 143(3) read with Section 92CA d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al contentions and gone through the case file. In our view, the Commissioner of Income Tax (Appeals) has not granted opportunity to the Assessing Officer before allowing the assessee's claim in view of the circular, which stipulates that factual issue requiring verification of facts have to be examined i.e. details of slump sale, its nature, etc. In our opinion, the Commissioner of Income Tax (Appeals) should have opted for an open remand to the Assessing Officer regarding the issue before us. Therefore, by modifying the order of the Commissioner of Income Tax (Appeals) to this extent, we direct the Assessing Officer to reexamine the claim in view of the 'circular' in accordance with law after affording adequate opportunity of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee on lock, stock and barrel basis, there was no case for splitting up or reconstruction as mentioned by the Assessing Officer. Therefore, the Assessing Officer was directed to delete the disallowance made under Section 10A of the Act. On the above grounds, the appeal filed by the assessee was allowed. 8. Aggrieved by that, the Revenue filed an appeal before the Tribunal and on perusal of the grounds of appeal, we find that once again, the Revenue contended that the said Circular of the CBDT was not taken into consideration. The Tribunal, by the impugned order, took note of the submissions made earlier on behalf of the Department for the assessment year 2009-10 and remanded the matter to the Assessing Officer to take note of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this issue arises in the first year, which is the assessment year under consideration namely 2007-08. 11. For the above reasons, TCA.No.880 of 2018 filed by the assessee is allowed and the order passed by the Tribunal is set aside. The Tribunal is directed to decide the matter on merits and in accordance with law. The substantial questions of law are left open. No costs. TCA.No.881 of 2018 : 12. In so far as TCA.No.881 of 2018 is concerned, it is for the assessment year 2010-11 and an identical order has been passed as impugned in TCA.No.880 of 2018. Therefore, TCA.No.881 of 2018 is also allowed on the same lines and the Tribunal is directed to take a decision on merits. The substantial questions of law are left open. No costs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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