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TMI Blog2025 (3) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... peal under Section 260-A of the Income Tax Act, 1961 (in short 'the Act') has been filed by the assessee challenging the judgement and order dated 25.08.2014 whereby the Income Tax Appellate Tribunal, Allahabad Bench, Allahabad has partly allowed ITA No.464/Alld./2005 for block period w.e.f. 01.04.1996 to 04.09.2002 modifying the order u/s 263 of the Act and with certain directions to the Assessing Officer. 3. We may mention here that the Tribunal has decided the appeal pursuant to an order dated 16.05.2014 passed by this Court whereby Income Tax Appeal No.422 of 2006 [The Commissioner of Income Tax (Central), Kanpur vs. Shri Umang Agarwal] was allowed and the matter was remanded to the Tribunal for fresh consideration. The assessee, being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that provisions of Section 158- BB(1)(ca) would apply in favour of the assessee. 5. The instant appeal was admitted by order dated 19.01.2018 on the questions of law framed in its memo which are reproduced as under:- "(i) Whether on the facts and circumstances of the case the ITAT was correct to hold that the return for A.Y. 2002-03 filed on 01.09.2004 was non-est, ignoring the delay in filing the return was not attributable to the appellant rather to the department as having supplied photocopies of the seized materials and books of accounts on 05.07.2004, seized on the date of search dated 04.09.2002 under Section 132 of the Act? (ii) Whether the ITAT was correct to allow the relief for A.Y. 2002-03 to the extent of the advance tax pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 30.09.2004, categorically recording that seized materials were handed over by Investigating Wing, Allahabad and on 09.09.2003, whereafter, by an order dated 05.12.2003, assessee was called upon to inspect the seized material and obtain photocopy thereof. The assessment order further records that inspection and photocopying work was carried out w.e.f. 31.12.2003 to 28.05.2004, print outs of CPUs and floppies seized were carried out in the presence of the assessee's authorized representative and two witnesses, a notice under Section 158-BC was issued to the assessee on 08.06.2004 requiring him to prepare a true and correct return of his total income in the prescribed form and to deliver the same in the Department's Office within twenty days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oday itself, as far as the observation of this Court in the order dated 16.05.2014 regarding ITR under Section 139 as 'non-est', we have observed as under:- "14. Insofar as the observation of this court that ITR filed under Section 139 of the Act had become 'non-est', we find that the same was not the ratio or the conclusion drawn by this Court, otherwise there was no necessity to remand the matter to the Appellate Tribunal. The said observation appearing at 'internal page No.5' of the order sought to be reviewed can either be treated as an argument advanced on behalf of the Department or, if not, it can be treated as an 'obiter.' It was infact a passing remark made by the Court during the course of deciding the appeal and, therefore, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Tribunal has failed to examine the entire facts and circumstances of the case but has treated the finding of 'non-est' as final and the consequence thereof appears to be that the assessee has been taxed twice i.e. in regular proceedings as well as those relating to block assessment for the relevant period. We may refer 'paragraph 8.3' of the impugned judgement which reads as under:- "8.3. It is admitted fact that when the search was conducted on 04.09.2002, the return for the assessment year 2002-2003 was not due on the date of the search and due date of filing of the return u/s. 139(1) for the assessment year 2002-2003 was 31.10.2002 and the said period had not expired on the date of search. It is also undisputed fact that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f held that delay in filing 'non-est' return was not solely attributable to the assessee. The said observation has material bearing on the entire controversy involved as the financial implications of the result of proceedings of regular assessment vis-a-vis block assessment have to be examined in the entirety of the fact situation. 12. Both the substantial questions framed revolve around the finding of 'non-est' and its effect on the assessee and once we are satisfied and have already held in the order deciding review application, as quoted above, that the said observation was merely an obiter and not a finding/ratio/conclusion drawn by this Court, we deem it appropriate to remand the matter to the Appellate Tribunal for fresh consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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