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TMI Blog2022 (8) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... h particular fact was not examined by the AO rendering the order erroneous as well as prejudicial to the interest of revenue - HELD THAT:- It appears from the records that Ld. AO has examined each and every aspect of the matter after analyzing the entire set of documents submitted by the assessee as demanded by Revenue which is reflecting in the order passed by the Ld. AO. In that view of the matter we do not justify the remand order to be sustainable particularly when the appeal has been preferred by the assessee against the said order passed by the Ld. AO. We further note that the Ld. CIT(A) is yet to decide the order either way and therefore, we do not find any reason to initiate and proceed against the said order passed by the Ld. AO un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /-. 3. The case of the assessee was reopened by issuing notice under Section 148 of the Act on 18.02.2019 on the basis of the assessee entering into the financial transactions amounting to Rs. 1,70,27,660/- during the year under consideration. The assessee accordingly filed its return on 17.04.2019 declaring total income at Rs. 3,74,870/-. The said assessment was completed under Section 143(3) r.w.s. 147 of the Income Tax Act, 02.12.2019 determining total assessed income at Rs. 8,00,560/-. The allegation leveled against the assessee is receiving cash of Rs. 1,70,27,660/-. In the absence of proper explanation the same was treated as unexplained income and added 2.5% of the cash transactions i.e. Rs. 4,25,691/- by the Ld. AO to the total inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported in (2019) 101 taxmann.com 119 (Madras). He has further relied upon the judgment passed by the Allahabad High Court in the case of CIT, Meerut vs. Vam Resorts Hotels Pvt. Ltd., reported in (2019) 111 taxmann.com 62 (Allahabad). 5. On the other hand, the Ld. DR relied upon the order passed by the authorities below. 6. It appears from the records that Ld. AO has examined each and every aspect of the matter after analyzing the entire set of documents submitted by the assessee as demanded by Revenue which is reflecting in the order passed by the Ld. AO. In that view of the matter we do not justify the remand order to be sustainable particularly when the appeal has been preferred by the assessee against the said order passed by the Ld. AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons for that. Therefore, the larger issue was pending before the Commissioner of Appeals, and in such circumstances, the Commissioner could not exercise power under Section 263 of the Act on account of the statutory bar. Therefore, on this ground also, the assumption of jurisdiction under Section 263 of the Act was wholly erroneous. Apart from that we have further considered the judgment passed by the Hon'ble Allahabad High Court in the case of Vam Resorts Hotels Pvt. Ltd. (supra). We find that on the identical situation the Hon'ble Court was pleased to quash the order passed under Section 263 of the Act during the pendency of the appeal preferred by the assessee under Section 250 of the Act. While upholding the order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r hinges, as such the remand order was not sustainable in the eyes of law. 28. Considering the facts and circumstances of the case, we are of the considered opinion, that the revenue has failed to make any case for interference in the order of the ITAT, as the CIT had proceeded to remand the matter back to the assessing authority while the appeal of the assessee was pending under Section 250 and the power of exercise under Section 263 was barred by Clause (c) to Explanation 1 of Section 263 of the Act. Further, the remand order by the CIT was based merely on suspicion and presumption. 29. The appeal is devoid of merit and is hereby dismissed. The question of law is, therefore, answered against the revenue and in favour of the assessee. Henc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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