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TMI Blog2021 (8) TMI 1332X X X X Extracts X X X X X X X X Extracts X X X X ..... those extracted in the earlier paragraph may have the effect of serving as a guiding factor or as a controlling observation over the discretion of the assessing authority while it comes to the conclusion regarding the nature of transactions. The assessee apprehends that the observations may denude the assessing officer of any discretion, especially since at this distance of time, making the cheques physically available for examination may be next to impossible especially since the cheques had been handed over to the Banks. The apprehension is not unfounded. For the purpose of entering into a conclusion on the veracity of the claim of the assessee that the transactions in question were through Bank accounts, different modes of proof would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , two were filed by the assessee and two were filed by the Department. All four appeals were allowed and remanded to the assessing authority. One set of appeals arise from orders of penalty issued under section 271D of the Income Tax Act, while the other set arise from orders of penalty issued under section 271E of the Income Tax Act. 2. The assessing officer, during the course of assessment for the year 2008-09, noticed that the assessee had accepted Rs.10,85,000/- as commission from various persons apart from other sums aggregating to Rs.25.50 Crores from a sister concern. Alleging the acceptance of the aforesaid sums as otherwise than through account payee cheques or the clearing system through the bank, the assessing officer imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w :- 1. Whether, on the facts and in the circumstances of the case and in the light of the bank confirmation certificates produced, the Appellate Tribunal was right in setting aside the order of the Commissioner (Appeals) and remanding the issue back to the assessing officer? 2. Whether, on the facts and in the circumstances of the case, the direction of the Appellate Tribunal to examine the copies of cheques physically to decide whether the cheques in question are account payee cheque is unreasonable and erroneous? 3. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal is right in confirming the penalty of Rs.3,70,000/- with respect to deposits received by the appellant? 5. We heard Senior A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the second appeal preferred by both the assessee as well as the department, the Tribunal remanded all the appeals to the assessing authority. The Tribunal decided to remand the cases to the assessing authority, after finding that the First Appellate Authority had accepted evidence without receiving a remand report from the assessing officer as per Rule 46A of the Income Tax Rules. While remanding the case, the assessing officer was directed to conduct necessary enquiries and also permitted the assessee to produce necessary evidence in support of its claim. 10. The First Appellate Authority allowed the appeal relying upon certain documents like the certificate issued by the Bank contrary to rule 46A. The assessing officer was not confront ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g authority while it comes to the conclusion regarding the nature of transactions. The assessee apprehends that the observations may denude the assessing officer of any discretion, especially since at this distance of time, making the cheques physically available for examination may be next to impossible especially since the cheques had been handed over to the Banks. The apprehension is not unfounded. 13. For the purpose of entering into a conclusion on the veracity of the claim of the assessee that the transactions in question were through Bank accounts, different modes of proof would be available. Physical examination of the cheque alone is not the only method. Direct, indirect or circumstantial evidence can be adduced to satisfy the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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