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TMI Blog2025 (2) TMI 1143X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant that they had, in fact, raised the ground of Rule 27 before the Tribunal and which has been left undecided, though the CIT (A) had decided the matter in favour of the assessee. Rather than again remitting the matter back to the CIT (A) for fresh adjudication of the matter and thereafter again facing another round of appeals by either of the parties, it would have been more appropriate if the Tribunal itself would had decided the said issue rather than remitting the matter back to the Tribunal. The view taken by the Income Tax Appellate Tribunal in the instant case does not seem to be proper, legal and justified. The Tribunal should have itself decided the said matter on merits in accordance with law. Hence, the order of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... short 'the Act'). The appellant-assessee had originally filed the return of income on 01.02.2018 showing their income at Rs. 2,01,44,670/-. However, during the search proceedings, it was reflected that cash payments to the tune of Rs. 3,358,51,191/- and Rs. 1,25,00,000/- were debited to the profit and loss account under the head "development expenses and site salaries'. Later on, the Department found that such expenses are not allowable within the provisions of Section 40A (3) of the Act. Subsequently, the assessee disclosed the additional income admitting a total income of Rs. 6,84,95,860/-. The case was taken up for scrutiny and notice under Section 143 (2) of the Act was issued and served on the assessee. Subsequently, penalty proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for both the assessment years and challenged the validity of order passed by the Assessing Officer, imposing penalty u/s 2701/271AAB of the Act. Since the Ld. CIT(A) has not discussed the issue or decided the issue raised by the assessee and further the assessee has raised the issue for the first time before the Tribunal, in our considered view, first appellate authority should get an opportunity to consider the legal issue raised by the assessee from his perspective and thus, we are of the considered view that, the issue needs to go back to the file of the Ld.CIT(A) for considering the preliminary legal issue raised by the assessee on validity of penalty proceedings initiated on the basis of vague notice issued u/s 274 r.w.s.270A/271AAB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of preferring appeal against such order. The impugned order does not warrant interference and prayed for rejection of the same. 8. Having considered the contentions put-forth on either side and on perusal of the record, what is reflected from the findings given by the Appellate Tribunal is that the Tribunal itself has reached to the conclusion that there does not seem to be any dispute so far as the legal issues raised before the CIT(A) are concerned. There is also no dispute so far as the assessee having raised the ground of applicability of Rule 27 of the Rules. The Tribunal also does not seem to be in quarrel to the contention of the appellant that they had, in fact, raised the ground of Rule 27 before the Tribunal and which has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o examine as to whether a search warrant was issued in the name of the assessee or not and adjourned the case to May 6, 2009. At this stage, there is no reason as to why the Tribunal being the final fact finding authority could not have recorded its finding on the aforesaid vital jurisdictional issue when consciously the Tribunal called for the record of search. This action of the learned Tribunal, in our view, seems to be unjust. xxxxxxxx xxxxxxxx Law is well-settled that once the materials are available on record, the appellate court should have disposed of the case on the merits taking those materials into consideration and there is no need to direct remand. The apex court in Indian Bank v. K. S. Govindan Nair [2004] 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w taken by the Income Tax Appellate Tribunal in the instant case does not seem to be proper, legal and justified. The Tribunal should have itself decided the said matter on merits in accordance with law. Hence, the order of remand by the impugned order deserves to be and is, accordingly, set aside and the matter stands remitted back to the Income Tax Appellate Tribunal for the Tribunal itself to decide the grounds on which the matter has been remanded by the Tribunal to the CIT(A). In addition, the Tribunal would also decide the other grounds raised by the Revenue in its appeal. 13. The appeals are allowed as stated above. There shall be no order as to costs. 14. Consequently, miscellaneous petitions pending, if any, shall stand closed. X X X X Extracts X X X X X X X X Extracts X X X X
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