SHRI SANDEEP SARBATMAL KOTHARI, CHANDRAPUR V. A.C.I.T., CHANDRAPUR CIRCLE,CHANDRAPUR, CHANDRAPUR

ITA 14/NAG/2021

• Counselvise Citation: [2023] 102 COUNSELVISE.COM (IT) 0917 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 20-09-2023
• Assessment Year: 2015-2016
• Appeal Filed On: 02-03-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAUMUDI PATIL
• Keywords: TDS
• Section: 143(3); 251

Judgement Text

।आयकर अपीलीय अिधकरण Ɋायपीठ नागपुर मŐ। IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH : : NAGPUR [VIRTUAL HEARING AT PUNE] BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.14/NAG/2021 िनधाᭅरण वषᭅ / Assessment Year : 2015-16 Shri Sandeep Sarbatmal Kothari, Samadhi Ward, Chandrapur – 442401. PAN: ADCPK 2643 J V s The Assistant Commissioner of Income Tax, Chandrapur Circle, Chandrapur. Appellant / Assessee Respondent / Revenue Assessee by Shri Abhay Agrawal – Adv. Revenue by Dr. Kaumudi Patil- CIT-DR Date of hearing 21/09/2023 Date of pronouncement 09/10/2023 आदेश/ ORDER PER DR. DIPAK P. RIPOTE, AM: This is an appeal filed by the assessee against the order of ld.CIT(A)-2, Nagpur dated 20.02.2020 emanating from assessment order section 143(3) of the Income Tax Act, 1961 dated 05.12.2017 for A.Y.2015-16. The assessee has raised the following grounds of appeal : “1. Whether the learned CIT(A) erred in not adjudicating issue with regards to addition of Rs.49,96,793 made by learned AO due to difference between receipts shown as per Books of accounts vis- ITA No.14/NAG/2021 Shri Sandeep Sarbatmal Kothari [A] 2 a- vis reflected in Form 26AS, relating to contractee party Ultratech Cement. 2. Without prejudice to Ground 1, the learned AO & CIT(A) failed to appreciate that, difference in receipts of Rs.49,96,763 arose due to the fact that contractee party (i.e Ultratech Cement) deducted TDS at the time of making advance to the Appellant during AY 2015-16 whereas, the Appellant had accounted for the receipts in subsequent year i.e AY 2016-17 following mercantile system of accounting. 3. Without prejudice to Ground 1, the learned AO & CIT(A) failed to appreciate that, subjecting the receipts of Rs.49,96,763 to tax in AY 2015-16 would lead to double taxation of same income since the receipts of Rs.49,96,763 has been offered to tax in AY 2016-17. 4. Without prejudice to Ground 1, whether the action of learned CIT(A) tantamount to "setting aside" of order which is beyond his appellate powers, when the legislature has consciously deleted the said power (i.e to set-aside) from section 251(1)(a) vide Finance Act 2001, w.e.f 01/06/2001. 5. Whether the learned AO erred in not seeking directions from learned CIT(A) with regards to addition of Rs.49,96,793, while giving effect to learned CIT(A)'s order. 6 Whether the action of learned CIT(A) & learned AO has caused serious prejudice to the interests of the appellant. 7. The Appellant prays leave of the Hon’ble Tribunal to add, amend, alter any of the Grounds of Appeal.” 1.1 The ld.Authorised Representative of the assessee filed a paper book. Findings & Analysis : 2. We have heard both the parties and perused the records. It is observed that the ld.CIT(A) had allowed the appeal for statistical purpose by directing the Assessing Officer(AO) to ITA No.14/NAG/2021 Shri Sandeep Sarbatmal Kothari [A] 3 verify the gross receipts of 26AS. Subsequently, the AO in the order giving effect to the order of ld.CIT(A) observed that ld.CIT(A) in the order has not adjudicated on the issue and hence claim of the assessee cannot be considered. As per section 251 of the Act, ld.CIT(A) has power either to confirm, reduce, enhance or annul the assessment. 3. Thus, the ld.CIT(A) does not have any power to set-aside the assessment order to the AO for verification. In these facts and circumstances of the case, we set-aside the order of ld.CIT(A) to ld.CIT(A) for denovo adjudication after giving opportunity to the assessee. The assessee shall provide all the necessary document required by the ld.CIT(A). Accordingly, grounds of appeal raised by the assessee are allowed for statistical purpose. 4. In the result, appeal of the assessee is allowed for statistical purpose. Order pronounced in the open Court on 9 th October, 2023. Sd/- Sd/- (S.S.GODARA) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 9 th October, 2023/ SGR* ITA No.14/NAG/2021 Shri Sandeep Sarbatmal Kothari [A] 4 आदेशकᳱᮧितिलिप अᮕेिषत /Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A), concerned. 4. The Pr. CIT, concerned. 5. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, नागपुर बᱶच, नागपुर/ DR, ITAT, Bench, Nagpur. 6. गाडᭅ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे/ITAT, Pune.