9911796707
TMI Blog2025 (2) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) has power of enhancement of assessment and penalty and can also reduce the amount of refund which AO also can do. The said power can be exercised by the CIT(A) only when there is an existence of enforceable order of the AO and which should have been impugned before the CIT(A). When there is no existence of the Order of the AO, which has been quashed by the Hon'ble High Court, the question of exercising the power confirmed under section 251 of the Act doesn't arise. In the present case the Ld. CIT(A) directed the AO to re-compute the demand raised considering the applicability of TDS rate of 2% as per Provisions of Section 194C of the Act by sitting on the Judgment of the Hon'ble Jurisdiction High Court wherein the Hon'ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 251 of the Act do not empower the CIT(A) to change the provision of law on which the assessment was made, 2.2 That the Ld. CIT has erred in ignoring judgment of the Hon'ble High Court of Delhi (DHC") in the case of the Appellant, wherein the DHC dismissed the plea of the revenue in Assessee's own case (W.P.(C) 6738/2022) and held that referring to a wrong provision for determination of TDS liability is without merits and determination of the nature of payment is pre-requisite for determining the provision of law & further that the reasoning of the Assessing Officer of finding whether the transaction is subject to TDS is important & diverging/differing from such reasoning would tantamount to a flawed approach. Hence, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HDRUA Act which states the quantum, manner and mechanism of the payment of EDC charges are determined and communicated by Director of DTCP. Thus, it is abundantly clear that the power to levy, charge and collection of the amount of EDC rests with DTCP, which is a nodal department of the State Government of Haryana; 5 That the Appellant reserves its right to add, amend or withdraw any grounds of appeal, before the appeal is finally heard." 3. Brief facts of the case are that, an order u/s 201(1)/201(1A) of the Income Tax Act, 1961 ('Act' for short) came to be passed on 25/03/2022 by the Assessing Officer (TDS Officer) treating the Assessee as 'Assessee in default' qua non deduction of tax at source u/s 194A of the Act on payment of Extern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned above. 6. The Ld. Counsel for the Assessee vehemently submitted that the very order of the A.O. passed u/s 201(1)/201(1A) of the Act has been quashed by the Jurisdictional High Court in Writ Petition No. 6738/2022 vide order dated 24/03/2023 and pursuant to the Judgment of the Hon'ble High Court, an order giving effect has also been passed by the A.O. by revising the demand as NIL, however, the Ld. CIT(A) ignoring the order of the Hon'ble High Court, directed the A.O. to re-compute the demand raised considering the applicability of TDS rate of 2% as per provisions of Section 194C of the Act, therefore, sought for allowing the Appeal. 7. Per contra, the Ld. Departmental Representative contended that the Ld. CIT(A) has relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the A.O. and which should have been impugned before the CIT(A). When there is no existence of the Order of the Assessing Officer, which has been quashed by the Hon'ble High Court, the question of exercising the power confirmed under section 251 of the Act doesn't arise. In the present case the Ld. CIT(A) directed the A.O. to re-compute the demand raised considering the applicability of TDS rate of 2% as per Provisions of Section 194C of the Act by sitting on the Judgment of the Hon'ble Jurisdiction High Court wherein the Hon'ble High Court has quashed the very order of the A.O. dated 25/03/2022.Thus, Ld. CIT(A) committed grave error in directing the A.O. to re-compute the demand. Considering the above facts and circumstance we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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