9911796707
TMI Blog2020 (6) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... 455/Bang/2018 is also an appeal by the assessee against the order dated 28.02.2018 of the CIT(Appeals)-4, Bangalore relating to assessment year 2009-10 which arises out of an order passed by the AO u/s. 154 of the Income-tax Act, 1961 [the Act] dated 28.4.2017. 3. The facts and circumstances under which these appeals arise for consideration are that the assessee is a partnership firm. The business of assessee was acquiring land and carrying out construction of commercial complexes, shopping malls, residential apartments, etc. For the AY 2009- 10, the assessee filed a return of income in response to notice u/s. 142(1) dated 17.3.2010 declaring total income of Rs. 3,42,45,991. The assessee filed a revised return of income on 31.3.2010 declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest 234B 5,20,050 Interest 234C 1,60,348 9,40,423 Total Tax and Interest payable 52,74,166 Less: Tax paid 1,00,00,950 Balance refundable 47,26,784 Add: Interest u/s. 24A 13,86,268 Total tax and interest refundable 61,13,052 Rounded off u/s. 288B 61,13,050 5. The AO thereafter passed an order u/s. 154 of the Act dated 6.4.2017 in and by which he observed that as per the CBDT Instruction No.1725 dated 22.8.2016 whereby the CBDT has laid down that if an assessment is set aside for being done afresh, the demand relating to the point on which the assessment has been remanded should not be enforced, but should be kept in abeyance, till fresh orders on the points are passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grieved by the two orders passed u/s. 154 of the Act dated 6.4.2017 and 28.4.2017, the assessee filed two appeals before the CIT(Appeals). The CIT(A) dismissed both the appeals holding that the order of AO was legally and factually correct. Aggrieved by the aforesaid orders, the assessee has preferred the present appeals before the Tribunal. 9. We have heard the rival submissions. In both the impugned orders passed u/s. 154 of the Act, the revenue has relied on the CBDT Circular No.1725 dated 22.8.2016 of the CBDT which reads as follows:- "Instruction No: 1725 Date of Issue: 22/8/1986 Allahabad and Andhra Pradesh High Courts have in their judgements in CIT Vs. Bandaru Sanyasi Raju (1981) 127 ITR 453 (AP) and S.P. Kocher Vs. ITO (1984) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate authority does not have any power to set aside an assessment or issue for consideration by the AO. Hence, as rightly contended by the assessee, the aforesaid Instruction cannot be the basis for passing the impugned orders. 11. Secondly, the Tribunal vide order dated 28.3.2016 in ITA No.631/Bang/2013 has held that the assessment order framed by the ITO is not valid and that the assessment has to be framed de novo by a competent Officer either ACIT/DCIT. By virtue of this order of Tribunal, the order of the AO which is sought to be rectified in the proceedings u/s. 154 of the Act is no longer in existence and even on this ground, the proceedings u/s. 154 of the Act are thoroughly misconceived, and in our view, deserves to be quashed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
