ITO, Wd.-8(1), Kolkata, Kolkata V. Mr. Bhairathi Tie-up Pvt. Ltd., Kolkata

ITA 1593/KOL/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9832 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 08-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P K SRIHARI
• Assessee Lawyers: S M SURANA
• Keywords: Unexplained cash credit; Assessment record
• Section: 133(6); 143(1); 250; 201; 147; 131; 68; 246

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. GODARA, JUDICIAL MEMBER) I.T.A. NO. 1593/KOL/2016 ASSESSMENT YEAR: 2009-10 INCOME TAX OFFICER, WARD- 8(1), KOLKATA....APPELLANT VS. M/S. BHAGIRATHI TIE-UP PVT. LTD.........................................RESPONDENT 33A, J.L. NEHRU ROAD KOLKATA 700 071 [PAN : AADCB 3248 H] APPEARANCES BY: DR. P.K. SRIHARI, CIT, SR. D/R, APPEARED ON BEHALF OF THE REVENUE. SHRI S.M. SURANA, ADVOCATE, APPEARING ON BEHALF OF THE ASSESSEE. DATE OF CONCLUDING THE HEARING : AUGUST 8 TH , 2019 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 20 TH , 2019 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-4, KOLKATA, (HEREINAFTER THE LD. CIT(A)), DT. 03/06/2016, PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), RELATING TO ASSESSMENT YEAR 2009-10. 2. AFTER HEARING RIVAL CONTENTIONS, WE FIND THAT IN THIS CASE, THE LD. CIT(A) HAS CALLED FOR A REMAND REPORT FROM THE ASSESSING OFFICER ON THE ISSUE BEFORE. THE ASSESSING OFFICER IN HIS REMAND REPORT DT. 26/05/2015, HAS STATED AS FOLLOWS:- THE DETAIL OF DOCUMENTS FILED BY THE ASSESSEE COMPANY ARE DULY PERUSED. FROM THE RECORD, IT IS FOUND THAT THE ALL APPLICANTS WHO HAVE SUBSCRIBED THE FRESH SHARE CAPITAL ISSUED BY THE ASSESSEE DURING THE RELEVANT YEAR UNDER CONSIDERATION ARE ASSESSED TO INCOME TAX AND PAYMENTS WERE MADE THROUGH BANKING CHANNELS BY WAY ISSUANCE OF CHEQUES. IT IS FURTHER FOUND THAT IN THE ORIGINAL ASSESSMENT PROCEEDINGS THE ASSESSEE COMPANY HAS FURNISHED THE COMPLETE DETAILS OF SUCH SHARE HOLDERS LIKE COMPLETE NAME, ADDRESS, PAN, INCOME TAX DETAILS .AND BANK PARTICULARS ALONGWITH COPIES OF ACKNOWLEDGEMENT OF RETURN OF INCOME FILED BY THEM WITH THIS OFFICE ALONGWITH BALANCE SHEET. IN THE BALANCE SHEET OF THE ALL THE SHARE HOLDERS, THE INVESTMENT MADE IN EQUITY I.E., THE ASSESSEE IS DISCLOSED AND DEPICTED. IN REMAND PROCEEDINGS, IT IS FURTHER FOUND THAT ALL THESE SHARE SUBSCRIBERS ARE REGULARLY ASSESSED TO INCOME TAX FILLING THEIR INCOME TAX RETURN ALONG WITH BALANCE SHEET. THE DOCUMENTS FURNISHED IN THE REMAND PROCEEDINGS, SUBSTANTIATE THAT EACH OF THE SHARE APPLICATION MONIES WAS MADE THROUGH THEIR RESPEC ACCOUNTS. THE EXPLANATION WITH REGARD TO IMMEDIATE SOURCE OF MAKING PAYMENT WAS ALSO MADE. THESE DOCUMENTARY EVIDENCES PROVED THE IDENTITY OF SHARE APPLICANTS AND GENUINENESS OF TRANSACTIONS WITH EACH SHARE APPLICANT. ON SCRUTINY OF ASSESSMENT RE CORDS, IT IS FOUND THAT EACH SHARE APPLICANT COMPANY ON ENQUIRY U/S 133(6) IN ORIGINAL ASSESSMENT PROCEEDINGS, IT WAS EVIDENT THAT EACH SHARE APPLICANT HAD SUBSTANTIATED COMPANY U/S 131 OF THE ACT, THE ASSESSEE COMPANY FURNISHED THE DETAILS OF THE SOURCES OF FUND AVAILABLE WITH SHARE APPLICANTS IN MAKING INVESTMENT IN THE EQUITY OF THE ASSESSEE COMPANY. THE DOCUMENTS AS GA WERE ALSO CROSS EXAMINED BY TAKING DEPOSITION OF THE DIRECTOR OF THE ASSESSEE COMPANY. 3. BASED ON THIS REMAND REPORT, THE LD. CIT(A) HAS AT PARA 4.15 HELD AS FOLLOWS: 4.15. IN HIS REMAND REPORT, THE AO HAS FINALLY CONCLUDE HIS MIND WITHOUT ANY IOTA OF DOUBT OR RESERVATION THAT THE APPLICANT INVESTOR COMPANIES MAKING THE TOTAL INVESTMENT OF RS. 17,63,00,000/ OF THE APPELLANT COMPANY AND THE RECEIPT OF THE SAID SUM BY THE APPELL COMPANY HAVE FULLY SUBSTANTIATED AND ESTABLISHED THE IDENTITY & CREDITWORTHINESS OF THE SHARE APPLICANT COMPANIES AND THE GENUINENESS OF ALL THE TRANSACTIONS MADE BY THEM WITH THE ASSESSEE COMPANY WITHOUT ANY RESERVATION. THEREFORE, CONSIDERING THE TOT ALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, I FIND SUBSTANCE IN THE ARGUMENT OF THE AR THAT THE APPELLANT HAS MADE ITS CASE THAT THE IDENTITY OF THE SHARE APPLICANTS ARE ESTABLISHED BEYOND DOUBT AND ON ENQUIRIES MADE BY THE AO THERE IS NO ADVERSE FIN APPLICANTS ARE EXISTING TAX ASSESSES AND SOME OF THEM WERE SUBJECT TO SCRUTINY ASSESSMENT DURING THE SAME PERIOD ESTABLISHES THE IDENTITY AND AUTHENTICITY OF THE SHARE APPLICANTS. ABOUT THE GENUINENE ADVERSE FINDING IN THE ASSESSMENT ORDER NOR WHICH IS SUBVERSIVE TO THE FACTS BROUGHT ON RECORD BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDING. THE CREDITWORTHINESS OF THE SHARE APPLICANTS AS REGARDS SHARE CAPITAL IS PROVED BY SUBMISSION OF THEIR RETURN, AUDITED ANNUAL ACCOUNTS, THEIR BANK STATEMENT AND REPLIES TO NOTICE U/S 133(6) OF THE ACT AS DEPICTED HEREINABOVE. THE NET WORTH OF SUCH SUBSCRIBERS IS IN EXCESS OF THE AMOUNT BY EACH OF THEM AS EXPLAINED HEREINABOVE. THE ADDITION MADE BY AO IS BASED ON EXTRANEOUS PARAMETERS NOT GERMANE FOR DECIDING THE ISSUE. THE AO HAD NOT DEALT WITH THE ISSUE JUDICIOUSLY AND CONSISTENTLY WITH THE EVIDENCE ADDUCED DURING THE COURSE O F THE ASSESSMENT PROCEEDINGS BY THE APPELLANT AND THE REPLIES OF THE SHARE APPLICANTS IN RESPECT OF THE SHARE CAPITAL TO WARRANT THE INFERENCE THAT SUCH SHARE APPLICATION MONIES RECEIVED IS UNACCOUNTED CASH CREDIT. THERE IS NO MATERIAL BROUGHT ON RECORD TO THAT EFFECT AND WILD SPECULATION OF THIS GENRE CANNOT BE PASSED OFF AS GOSPEL TRUTH. HENCE, I AM INCLINED TO ACCEPT THE ARGUMENTS TENDERED BY THE AR OF THE APPELLANT IN THIS RESPECT. IN VIEW OF THE ABOVE, I HAVE NO HESITATION TO HOLD THAT THE IMPUGNED ADD S. 68 IS NOT JUSTIFIED IN THE CIRCUMSTANCES AND ACCORDINGLY, DIRECT HIM TO DELETE SUCH ADDITION OF RS.17,63,00,000/ NO. 5 OF THE APPEAL IS ALLOWED. 2 M/S. BHAGIRATHI TIE THE DOCUMENTS FURNISHED IN THE REMAND PROCEEDINGS, SUBSTANTIATE THAT EACH OF THE SHARE APPLICATION MONIES WAS MADE THROUGH THEIR RESPEC ACCOUNTS. THE EXPLANATION WITH REGARD TO IMMEDIATE SOURCE OF MAKING PAYMENT WAS ALSO MADE. THESE DOCUMENTARY EVIDENCES PROVED THE IDENTITY OF SHARE APPLICANTS AND GENUINENESS OF TRANSACTIONS WITH EACH SHARE APPLICANT. ON SCRUTINY CORDS, IT IS FOUND THAT EACH SHARE APPLICANT COMPANY ON ENQUIRY U/S 133(6) IN ORIGINAL ASSESSMENT PROCEEDINGS, IT WAS EVIDENT THAT EACH SHARE SUBSTANTIATED RESOURCES OF THEIR OWN. IN DEPOSITION OF ASSESSEE COMPANY U/S 131 OF THE ACT, THE ASSESSEE COMPANY FURNISHED THE DETAILS OF THE SOURCES OF FUND AVAILABLE WITH SHARE APPLICANTS IN MAKING INVESTMENT IN THE EQUITY OF THE ASSESSEE COMPANY. THE DOCUMENTS AS GA THERED ON REMAND PROCEEDINGS, WERE ALSO CROSS EXAMINED BY TAKING DEPOSITION OF THE DIRECTOR OF THE ASSESSEE BASED ON THIS REMAND REPORT, THE LD. CIT(A) HAS AT PARA 4.15 HELD AS FOLLOWS: 4.15. IN HIS REMAND REPORT, THE AO HAS FINALLY CONCLUDE D WITH FULL APPLICATION OF HIS MIND WITHOUT ANY IOTA OF DOUBT OR RESERVATION THAT THE APPLICANT INVESTOR COMPANIES MAKING THE TOTAL INVESTMENT OF RS. 17,63,00,000/ - TO THE EQUITY SHARES OF THE APPELLANT COMPANY AND THE RECEIPT OF THE SAID SUM BY THE APPELL COMPANY HAVE FULLY SUBSTANTIATED AND ESTABLISHED THE IDENTITY & CREDITWORTHINESS OF THE SHARE APPLICANT COMPANIES AND THE GENUINENESS OF ALL THE TRANSACTIONS MADE BY THEM WITH THE ASSESSEE COMPANY WITHOUT ANY RESERVATION. THEREFORE, ALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, I FIND SUBSTANCE IN THE ARGUMENT OF THE AR THAT THE APPELLANT HAS MADE ITS CASE THAT THE IDENTITY OF THE SHARE APPLICANTS ARE ESTABLISHED BEYOND DOUBT AND ON ENQUIRIES MADE BY THE AO THERE IS NO ADVERSE FIN DING REACHED IN THIS ASPECT. THE FACT THAT ALL THE SHARE APPLICANTS ARE EXISTING TAX ASSESSES AND SOME OF THEM WERE SUBJECT TO SCRUTINY ASSESSMENT DURING THE SAME PERIOD ESTABLISHES THE IDENTITY AND AUTHENTICITY OF THE SHARE APPLICANTS. ABOUT THE GENUINENE SS OF THE TRANSACTIONS THERE IS NEITHER ANY ADVERSE FINDING IN THE ASSESSMENT ORDER NOR WHICH IS SUBVERSIVE TO THE FACTS BROUGHT ON RECORD BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDING. THE CREDITWORTHINESS OF THE SHARE APPLICANTS AS REGARDS THEIR SUBSCRIPTION TO THE SHARE CAPITAL IS PROVED BY SUBMISSION OF THEIR RETURN, AUDITED ANNUAL ACCOUNTS, THEIR BANK STATEMENT AND REPLIES TO NOTICE U/S 133(6) OF THE ACT AS DEPICTED HEREINABOVE. THE NET WORTH OF SUCH SUBSCRIBERS IS IN EXCESS OF THE AMOUNT BY EACH OF THEM AS EXPLAINED HEREINABOVE. THE ADDITION MADE BY AO IS BASED ON EXTRANEOUS PARAMETERS NOT GERMANE FOR DECIDING THE ISSUE. THE AO HAD NOT DEALT WITH THE ISSUE JUDICIOUSLY AND CONSISTENTLY WITH THE EVIDENCE ADDUCED DURING THE F THE ASSESSMENT PROCEEDINGS BY THE APPELLANT AND THE REPLIES OF THE SHARE APPLICANTS IN RESPECT OF THE SHARE CAPITAL TO WARRANT THE INFERENCE THAT SUCH SHARE APPLICATION MONIES RECEIVED IS UNACCOUNTED CASH CREDIT. THERE IS NO MATERIAL THAT EFFECT AND WILD SPECULATION OF THIS GENRE CANNOT BE PASSED OFF AS GOSPEL TRUTH. HENCE, I AM INCLINED TO ACCEPT THE ARGUMENTS TENDERED BY THE AR OF THE APPELLANT IN THIS RESPECT. IN VIEW OF THE ABOVE, I HAVE NO HESITATION TO HOLD THAT THE IMPUGNED ADD ITION MADE BY THE AO BY INVOKING THE PROVISIONS OF S. 68 IS NOT JUSTIFIED IN THE CIRCUMSTANCES AND ACCORDINGLY, DIRECT HIM TO DELETE SUCH ADDITION OF RS.17,63,00,000/ - MADE ON THIS ACCOUNT. THUS, EFFECTIVE GROUND NO. 5 OF THE APPEAL IS ALLOWED. I.T.A. NO. 1593/KOL/2016 ASSESSMENT YEAR: 2009-10 M/S. BHAGIRATHI TIE -UP PVT. LTD THE DOCUMENTS FURNISHED IN THE REMAND PROCEEDINGS, SUBSTANTIATE THAT EACH OF THE SHARE APPLICATION MONIES WAS MADE THROUGH THEIR RESPEC TIVE BANK ACCOUNTS. THE EXPLANATION WITH REGARD TO IMMEDIATE SOURCE OF MAKING PAYMENT WAS ALSO MADE. THESE DOCUMENTARY EVIDENCES PROVED THE IDENTITY OF SHARE APPLICANTS AND GENUINENESS OF TRANSACTIONS WITH EACH SHARE APPLICANT. ON SCRUTINY CORDS, IT IS FOUND THAT EACH SHARE APPLICANT COMPANY ON ENQUIRY U/S 133(6) IN ORIGINAL ASSESSMENT PROCEEDINGS, IT WAS EVIDENT THAT EACH SHARE RESOURCES OF THEIR OWN. IN DEPOSITION OF ASSESSEE COMPANY U/S 131 OF THE ACT, THE ASSESSEE COMPANY FURNISHED THE DETAILS OF THE SOURCES OF FUND AVAILABLE WITH SHARE APPLICANTS IN MAKING INVESTMENT IN THE EQUITY ON REMAND PROCEEDINGS, WERE ALSO CROSS EXAMINED BY TAKING DEPOSITION OF THE DIRECTOR OF THE ASSESSEE BASED ON THIS REMAND REPORT, THE LD. CIT(A) HAS AT PARA 4.15 HELD AS FOLLOWS: - D WITH FULL APPLICATION OF HIS MIND WITHOUT ANY IOTA OF DOUBT OR RESERVATION THAT THE APPLICANT INVESTOR TO THE EQUITY SHARES OF THE APPELLANT COMPANY AND THE RECEIPT OF THE SAID SUM BY THE APPELL ANT COMPANY HAVE FULLY SUBSTANTIATED AND ESTABLISHED THE IDENTITY & CREDITWORTHINESS OF THE SHARE APPLICANT COMPANIES AND THE GENUINENESS OF ALL THE TRANSACTIONS MADE BY THEM WITH THE ASSESSEE COMPANY WITHOUT ANY RESERVATION. THEREFORE, ALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, I FIND SUBSTANCE IN THE ARGUMENT OF THE AR THAT THE APPELLANT HAS MADE ITS CASE THAT THE IDENTITY OF THE SHARE APPLICANTS ARE ESTABLISHED BEYOND DOUBT AND ON ENQUIRIES MADE BY THE DING REACHED IN THIS ASPECT. THE FACT THAT ALL THE SHARE APPLICANTS ARE EXISTING TAX ASSESSES AND SOME OF THEM WERE SUBJECT TO SCRUTINY ASSESSMENT DURING THE SAME PERIOD ESTABLISHES THE IDENTITY AND AUTHENTICITY OF THE SS OF THE TRANSACTIONS THERE IS NEITHER ANY ADVERSE FINDING IN THE ASSESSMENT ORDER NOR WHICH IS SUBVERSIVE TO THE FACTS BROUGHT ON RECORD BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDING. THEIR SUBSCRIPTION TO THE SHARE CAPITAL IS PROVED BY SUBMISSION OF THEIR RETURN, AUDITED ANNUAL ACCOUNTS, THEIR BANK STATEMENT AND REPLIES TO NOTICE U/S 133(6) OF THE ACT AS DEPICTED HEREINABOVE. THE NET WORTH OF SUCH SUBSCRIBERS IS IN EXCESS OF THE AMOUNT INVESTED BY EACH OF THEM AS EXPLAINED HEREINABOVE. THE ADDITION MADE BY AO IS BASED ON EXTRANEOUS PARAMETERS NOT GERMANE FOR DECIDING THE ISSUE. THE AO HAD NOT DEALT WITH THE ISSUE JUDICIOUSLY AND CONSISTENTLY WITH THE EVIDENCE ADDUCED DURING THE F THE ASSESSMENT PROCEEDINGS BY THE APPELLANT AND THE REPLIES OF THE SHARE APPLICANTS IN RESPECT OF THE SHARE CAPITAL TO WARRANT THE INFERENCE THAT SUCH SHARE APPLICATION MONIES RECEIVED IS UNACCOUNTED CASH CREDIT. THERE IS NO MATERIAL THAT EFFECT AND WILD SPECULATION OF THIS GENRE CANNOT BE PASSED OFF AS GOSPEL TRUTH. HENCE, I AM INCLINED TO ACCEPT THE ARGUMENTS TENDERED BY THE AR OF THE APPELLANT IN THIS RESPECT. IN VIEW OF THE ABOVE, I HAVE NO HESITATION ITION MADE BY THE AO BY INVOKING THE PROVISIONS OF S. 68 IS NOT JUSTIFIED IN THE CIRCUMSTANCES AND ACCORDINGLY, DIRECT HIM TO DELETE MADE ON THIS ACCOUNT. THUS, EFFECTIVE GROUND 4. UNDER THESE CIRCUMSTANCES, THE ISSUE THAT HAS TO BE CONSIDERED IS WHETHER THE ITO, WARD- 8(1), KOLKATA, WHO IS THE APPELLANT IN THIS CASE APPEAL AGAINST HIS OWN FINDINGS IN THE REMAND REPORT. HIGH COURT IN THE CASE OF SMT. B. JAYALAKSHMI V. ASSISTANT COMMISSIONER OF INCOME SALARY CIRCLE- II, CHENNAI [2018] 96 TAXMANN.COM 486 (MADRAS), HELD AS FOLLOWS: '19. FIRSTLY, WE HAVE TO TAKE NOTE OF THE FACT THAT THE JURISDICTIONAL ISSUE, WHICH COULD BE RAISED AT ANY POINT OF TIME. SECONDLY, THE TRIBUNAL WAS REQUIRED TO CONSIDER AS TO WHETHER IT HAD JURISDICTION TO ENTERTAIN THE APPEAL FILED BY THE REVENUE AGAINST THE ORDER PASSED BY THE REPORT. AS NOTICED ABOVE, THE ORDER PASSED BY THE TRIBUNAL IS A VERBATIM REPETITION OF THE ASSESSMENT ORDER, DATED 29.03.2001. THUS, THE TRIBUNAL WAS REQUIRED TO CONSIDER THE CORRECTNESS OF THE ORDER PASSED BY THE TRIBUNAL WOULD HAVE NOTICED THAT THE ORDER ALLOWING THE ASSESSEE'S APPEAL BY THE CIT (A) WAS BASED ON THE REMAND REPORT. IF THIS HAD BEEN TAKEN NOTE OF, THE TRIBUNAL WOULD HAVE TO CONSIDER AS T O WHETHER THE APPEAL BY THE REVENUE WAS MAINTAINABLE BEFORE IT. IN THE CASE OF JIVATLAL PURTAPSHI (SUPRA), IT WAS HELD THAT THE DEPARTMENT HAVING AGREED TO DELETE THE AMOUNT FROM THE ASSESSMENT AND HAVING CONSIDERED THE DELETION BEFORE THE APPELLATE ASSIST ANT COMMISSIONER, CANNOT BE AGGRIEVED BY THAT PART OF THE ORDER TO ENABLE IT TO FILE AN APPEAL BEFORE THE TRIBUNAL AND THEREFORE, SUCH AN APPEAL, NEITHER COMPETENT NOR CAPABLE OF BEING ENTERTAINED BY THE TRIBUNAL. 23. AS ALREADY NOTICED, THE TRIBUNAL VERB OFFICER, DATED 29.03.2001, AND IGNORED THE REMAND REPORT, DATED 25.11.2002 AND THE FINDINGS RENDERED BY THE CIT (A) BASED ON SUCH REMAND REPORT. THUS, IF SUCH IS THE SITUATION, THE APPEAL ITSELF WOULD HAVE BE EN INCOMPETENT. HENCE, THIS QUESTION, WHICH TOUCHES UPON THE JURISDICTION OF THE TRIBUNAL, HAS NOT BEEN CONSIDERED BY THE TRIBUNAL, WE ARE INCLINED TO REVIEW THE JUDGMENT AND REMAND THE MATTER TO THE TRIBUNAL FOR FRESH CONSIDERATION. 24. IN THE RESULT, TH E REVIEW PETITIONS ARE ALLOWED AND THE JUDGMENT DATED 30.09.2013, IN TAX CASE (APPEAL) NOS.819 TO 821 OF 2010 IS REVIEWED AND RECALLED AND THE APPEALS STANDS DISPOSED OF, BY REMANDING THE MATTER TO THE TRIBUNAL TO DECIDE THE QUESTION OF ITS JURISDICTION TO ENTERTAIN THE APPEALS FILED BY THE REVENUE AGAINST THE ORDERS OF THE CIT (A). IN THE EVENT, THE TRIBUNAL DECIDES THE QUESTION IN FAVOUR OF THE REVENUE, IT SHALL RECONSIDER THE OTHER ISSUES AFTER OPPORTUNITY TO THE REVENUE AND ASSESSEE.' 4..1. THE KOLKATA BENCH OF THE TRIBUNAL IN THE CASE OF D.C.I.T., CENTRAL CIRCLE KOLKATA VERSUS M/S SHRADDHA TOWER PVT. LTD. 2018 (10) TMI 1405 KOLKATA, HELD AS FOLLOWS:- '8. HEARD RIVAL CONTENTIONS. CASE, ON PERUSAL OF THE DOCUMENTS ON RECORD AND THE ORDERS OF THE AUTHORITIES BELOW WE HOLD AS FOLLOWS :- THE AO IN HIS REMAND REPORT HAS STATED THAT HE HAS VERIFIED ALL THE DOCUMENTS AND E FURNISHED BY THE ASSESSEE IN SUPPORT OF ITS CLAIMS. NO ADVERSE OBSERVATIONS WERE MADE BY THE AO IN THE REMAND REPORT. THE CLAIM OF THE ASSESSEE WAS ACCEPTED AS CORRECT. UNDER THE 3 M/S. BHAGIRATHI TIE THESE CIRCUMSTANCES, THE ISSUE THAT HAS TO BE CONSIDERED IS WHETHER THE 8(1), KOLKATA, WHO IS THE APPELLANT IN THIS CASE , HAS THE LOCUS STANDI APPEAL AGAINST HIS OWN FINDINGS IN THE REMAND REPORT. WE FIND THAT THE HON'BLE MADRAS HIGH COURT IN THE CASE OF SMT. B. JAYALAKSHMI V. ASSISTANT COMMISSIONER OF INCOME II, CHENNAI [2018] 96 TAXMANN.COM 486 (MADRAS), HELD AS FOLLOWS: '19. FIRSTLY, WE HAVE TO TAKE NOTE OF THE FACT THAT THE ISSUE CANVASSED BEFORE US, IS A JURISDICTIONAL ISSUE, WHICH COULD BE RAISED AT ANY POINT OF TIME. SECONDLY, THE TRIBUNAL WAS REQUIRED TO CONSIDER AS TO WHETHER IT HAD JURISDICTION TO ENTERTAIN THE APPEAL FILED BY THE REVENUE AGAINST THE ORDER PASSED BY THE CIT (A), WHICH ITSELF WAS BASED UPON A REMAND REPORT. AS NOTICED ABOVE, THE ORDER PASSED BY THE TRIBUNAL IS A VERBATIM REPETITION OF THE ASSESSMENT ORDER, DATED 29.03.2001. THUS, THE TRIBUNAL WAS REQUIRED TO CONSIDER THE CORRECTNESS OF THE ORDER PASSED BY THE CIT (A) AND IF HAD BEEN DONE IN A PROPER PROSPECTIVE, THE TRIBUNAL WOULD HAVE NOTICED THAT THE ORDER ALLOWING THE ASSESSEE'S APPEAL BY THE CIT (A) WAS BASED ON THE REMAND REPORT. IF THIS HAD BEEN TAKEN NOTE OF, THE TRIBUNAL WOULD HAVE TO O WHETHER THE APPEAL BY THE REVENUE WAS MAINTAINABLE BEFORE IT. IN THE CASE OF JIVATLAL PURTAPSHI (SUPRA), IT WAS HELD THAT THE DEPARTMENT HAVING AGREED TO DELETE THE AMOUNT FROM THE ASSESSMENT AND HAVING CONSIDERED THE DELETION BEFORE THE APPELLATE ANT COMMISSIONER, CANNOT BE AGGRIEVED BY THAT PART OF THE ORDER TO ENABLE IT TO FILE AN APPEAL BEFORE THE TRIBUNAL AND THEREFORE, SUCH AN APPEAL, NEITHER COMPETENT NOR CAPABLE OF BEING ENTERTAINED BY THE TRIBUNAL. 23. AS ALREADY NOTICED, THE TRIBUNAL VERB ATIM REPEATED THE ORDER PASSED BY THE ASSESSING OFFICER, DATED 29.03.2001, AND IGNORED THE REMAND REPORT, DATED 25.11.2002 AND THE FINDINGS RENDERED BY THE CIT (A) BASED ON SUCH REMAND REPORT. THUS, IF SUCH IS THE SITUATION, THE APPEAL EN INCOMPETENT. HENCE, THIS QUESTION, WHICH TOUCHES UPON THE JURISDICTION OF THE TRIBUNAL, HAS NOT BEEN CONSIDERED BY THE TRIBUNAL, WE ARE INCLINED TO REVIEW THE JUDGMENT AND REMAND THE MATTER TO THE TRIBUNAL FOR FRESH CONSIDERATION. E REVIEW PETITIONS ARE ALLOWED AND THE JUDGMENT DATED 30.09.2013, IN TAX CASE (APPEAL) NOS.819 TO 821 OF 2010 IS REVIEWED AND RECALLED AND THE APPEALS STANDS DISPOSED OF, BY REMANDING THE MATTER TO THE TRIBUNAL TO DECIDE THE QUESTION OF ITS JURISDICTION ENTERTAIN THE APPEALS FILED BY THE REVENUE AGAINST THE ORDERS OF THE CIT (A). IN THE EVENT, THE TRIBUNAL DECIDES THE QUESTION IN FAVOUR OF THE REVENUE, IT SHALL RECONSIDER THE OTHER ISSUES AFTER OPPORTUNITY TO THE REVENUE AND ASSESSEE.' BENCH OF THE TRIBUNAL IN THE CASE OF D.C.I.T., CENTRAL CIRCLE KOLKATA VERSUS M/S SHRADDHA TOWER PVT. LTD. 2018 (10) TMI 1405 '8. HEARD RIVAL CONTENTIONS. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, ON PERUSAL OF THE DOCUMENTS ON RECORD AND THE ORDERS OF THE AUTHORITIES BELOW WE HOLD THE AO IN HIS REMAND REPORT HAS STATED THAT HE HAS VERIFIED ALL THE DOCUMENTS AND E FURNISHED BY THE ASSESSEE IN SUPPORT OF ITS CLAIMS. NO ADVERSE OBSERVATIONS WERE MADE BY THE AO IN THE REMAND REPORT. THE CLAIM OF THE ASSESSEE WAS ACCEPTED AS CORRECT. UNDER THE I.T.A. NO. 1593/KOL/2016 ASSESSMENT YEAR: 2009-10 M/S. BHAGIRATHI TIE -UP PVT. LTD THESE CIRCUMSTANCES, THE ISSUE THAT HAS TO BE CONSIDERED IS WHETHER THE LOCUS STANDI TO FILE THE WE FIND THAT THE HON'BLE MADRAS HIGH COURT IN THE CASE OF SMT. B. JAYALAKSHMI V. ASSISTANT COMMISSIONER OF INCOME -TAX, II, CHENNAI [2018] 96 TAXMANN.COM 486 (MADRAS), HELD AS FOLLOWS: - ISSUE CANVASSED BEFORE US, IS A JURISDICTIONAL ISSUE, WHICH COULD BE RAISED AT ANY POINT OF TIME. SECONDLY, THE TRIBUNAL WAS REQUIRED TO CONSIDER AS TO WHETHER IT HAD JURISDICTION TO ENTERTAIN THE APPEAL FILED BY THE CIT (A), WHICH ITSELF WAS BASED UPON A REMAND REPORT. AS NOTICED ABOVE, THE ORDER PASSED BY THE TRIBUNAL IS A VERBATIM REPETITION OF THE ASSESSMENT ORDER, DATED 29.03.2001. THUS, THE TRIBUNAL WAS REQUIRED TO CONSIDER THE THE CIT (A) AND IF HAD BEEN DONE IN A PROPER PROSPECTIVE, THE TRIBUNAL WOULD HAVE NOTICED THAT THE ORDER ALLOWING THE ASSESSEE'S APPEAL BY THE CIT (A) WAS BASED ON THE REMAND REPORT. IF THIS HAD BEEN TAKEN NOTE OF, THE TRIBUNAL WOULD HAVE TO O WHETHER THE APPEAL BY THE REVENUE WAS MAINTAINABLE BEFORE IT. IN THE CASE OF JIVATLAL PURTAPSHI (SUPRA), IT WAS HELD THAT THE DEPARTMENT HAVING AGREED TO DELETE THE AMOUNT FROM THE ASSESSMENT AND HAVING CONSIDERED THE DELETION BEFORE THE APPELLATE ANT COMMISSIONER, CANNOT BE AGGRIEVED BY THAT PART OF THE ORDER TO ENABLE IT TO FILE AN APPEAL BEFORE THE TRIBUNAL AND THEREFORE, SUCH AN APPEAL, NEITHER COMPETENT NOR CAPABLE OF ATIM REPEATED THE ORDER PASSED BY THE ASSESSING OFFICER, DATED 29.03.2001, AND IGNORED THE REMAND REPORT, DATED 25.11.2002 AND THE FINDINGS RENDERED BY THE CIT (A) BASED ON SUCH REMAND REPORT. THUS, IF SUCH IS THE SITUATION, THE APPEAL EN INCOMPETENT. HENCE, THIS QUESTION, WHICH TOUCHES UPON THE JURISDICTION OF THE TRIBUNAL, HAS NOT BEEN CONSIDERED BY THE TRIBUNAL, WE ARE INCLINED TO REVIEW THE E REVIEW PETITIONS ARE ALLOWED AND THE JUDGMENT DATED 30.09.2013, IN TAX CASE (APPEAL) NOS.819 TO 821 OF 2010 IS REVIEWED AND RECALLED AND THE APPEALS STANDS DISPOSED OF, BY REMANDING THE MATTER TO THE TRIBUNAL TO DECIDE THE QUESTION OF ITS JURISDICTION ENTERTAIN THE APPEALS FILED BY THE REVENUE AGAINST THE ORDERS OF THE CIT (A). IN THE EVENT, THE TRIBUNAL DECIDES THE QUESTION IN FAVOUR OF THE REVENUE, IT SHALL RECONSIDER THE OTHER ISSUES BENCH OF THE TRIBUNAL IN THE CASE OF D.C.I.T., CENTRAL CIRCLE -1 (4) , KOLKATA VERSUS M/S SHRADDHA TOWER PVT. LTD. 2018 (10) TMI 1405 - ITAT ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, ON PERUSAL OF THE DOCUMENTS ON RECORD AND THE ORDERS OF THE AUTHORITIES BELOW WE HOLD THE AO IN HIS REMAND REPORT HAS STATED THAT HE HAS VERIFIED ALL THE DOCUMENTS AND E VIDENCES FURNISHED BY THE ASSESSEE IN SUPPORT OF ITS CLAIMS. NO ADVERSE OBSERVATIONS WERE MADE BY THE AO IN THE REMAND REPORT. THE CLAIM OF THE ASSESSEE WAS ACCEPTED AS CORRECT. UNDER THE CIRCUMSTANCES, THE LD. CIT(A) BASED ON THIS REMAND REPORT BY THE A.O CASE. THE LD. CIT(A) HELD AS FOLLOWS : 'I HAVE CONSIDERED THE FINDING OF THE AO IN THE ASSESSMENT ORDER AS WELL AS IN THE REMAND REPORT ALONG WITH THE WRITTEN SUBMISSION FILED BY THE AR DURING THE APPELLATE PROCEEDINGS, I HAVE AL SO CONSIDERED COMMENTS OF THE ADDL.CIT ON THE REMAND REPORT AND THE WRITTEN SUBMISSION FILED BY THE AR ON SUCH COMMENTS AS WELL. I FIND THAT THE AO HIMSELF HAS REPORTED IN THE REMAND REPORT THAT 'INSPECTOR ATTACHED TO HIS(THIS) CHARGE WAS DEPLOYED FOR TRAC SOME OF THE COMPANIES ON TEST CHECK BASIS. THE INSPECTOR HAS STATED IN HIS REPORT THAT ON VERIFICATION OF SOME OF THE ADDRESSES, HE COULD LOCATE THE NAME BOARDS OF SOME OF THE SOURCE COMPANIES DISPLAYED AT THE ADDRESSES. HE ALSO STATED THAT HE COULD SE SOME OF THE RESPECTIVE SOURCES COMPANIES ON DEMAND TO THE PEOPLE PRESENT THERE, IT IS REVEALED TO THE INSPECTOR THAT IN SOME CASES, THE SOURCE COMPANIES HAS TAKEN TABLE SPACE AGREEMENTS. IN SOME CASES THEY ARE OCCUPYING ON RENTAL BAS CONSIDERED, THE REPORT SUBMITTED BY THE INSPECTOR OR ALONG WITH EXTRACT OF SUPPORTING DOCUMENTS WAS ALSO CONSIDERED AND PLACED ON RECORD. NO MATERIAL (IS) FOUND IN THE ASSESSMENT RECORD WHICH INDICATES THAT EFFORT HAS BEE CREDITWORTHINESS AS SUBMITTED BY THE ASSESSEE DURING THIS REMAND PROCEEDINGS. ALL THE PAPERS, COPY OF DOCUMENTS SUBMITTED DURING THE REMAND STAGE IN RESPECT OF LOANS AND ADVANCES TAKEN FROM COMPANIES ARE CAREFULLY CHECKED ASSESSING OFFICER CONSIDERED ONLY THE ADVANCE TAKEN DURING A CERTAIN FINANCIAL YEAR BUT NOT CONSIDERED THE REPAYMENT MADE DURING THE YEAR. THE CONTENTIONS OF THE ASSESSEE IN THIS REGARD APPEAR TO BE COR RECT. EACH ENTRY OF ADVANCE TAKEN AND GIVEN WAS VERIFIED FROM THE BANK ACCOUNT: THE BALANCE OF ADVANCE EXISTED AT THE END OF THE FINANCIAL YEAR IS SUFFICIENT TO ACQUIRE ASSETS EXISTED IN THE RIGHT SIDE OF THE BALANCE SHEET IN EACH CASE AND EACH ASSESSMENT YEAR'. FROM THE REMAND REPORT OF THE AO, IT IS CLEAR THAT THE AO HAD ACCEPTED AFTER DUE VERIFICATION, THE EXISTENCE AND CREDITWORTHINESS OF COMPANIES WHICH HAVE GIVEN ADVANCE TO THE ASSESSEE. THE AO HAS ALSO MADE INVESTIGATION AND GIVEN HIS FINDINGS THAT AND GIVEN WAS VERIFIED FROM THE BANK ACCOUNT. FROM THE REPORT IT IS ALSO CLEAR THAT THE BALANCE OF ADVANCE EXISTED AT THE END OF THE FINANCIAL YEAR WAS SUFFICIENT TO ACQUIRE ASSETS EXISTING IN THE RIGHT SIDE OF THE BALANCE SHEET THE CATEGORICAL FINDINGS GIVEN BY THE AO AFTER DUE VERIFICATION OF PAPERS AND DETAILS FILED AND AFTER PROPER INVESTIGATION AND REPORT BY THE INSPECTOR ATTACHED TO THE AO IN THE REMAND PROCEEDINGS, THE ISSUE INVOLVED IN THIS CASE HAS BEEN ADEQUATELY DISCUSSED AND ELABORATED BY THE AO. ACCORDINGLY ASSESSEE'S APPEAL ON GROUND NO 3 IS ALLOWED.' 9. ON THESE FACTS THE ISSUE IS WHETHER THE REVENUE COULD AT ALL FILE AN APPEAL BEFORE THE TRIBUNAL. THE HON'B LE MADRAS HIGH COURT IN THE CASE OF SMT.B. JAYALAKSHMI VS ACIT (SUPRA HELD AS FOLLOWS :- ' SECTION 246 OF THE INCOME (REMAND REPORT) - ASSESSMENT YEARS 1995 ORDER WAS PASSED UNDER SECTION 143(1) SUBS EQUENTLY, ASSESSING OFFICER REOPENED ASSESSMENT UNDER TREATING AGRICULTURAL INCOME OF ASSESSEE AS NON FOR REMAND REPORT - ASS ESSING OFFICER SUBMITTED REMAND REPORT AFTER ENQUIRY AND STATED THEREIN, THAT ASSESSEE WAS CARRYING ON AGRICULTURAL ACTIVITY AND, THUS, SHE WAS EARNING AGRICULTURAL INCOME THEREOF CLAIM OF AG RICULTURAL INCOME OF ASSESSEE WITHOUT TAKING INTO CONSIDERATION THAT ORDER ALLOWING ASSESSEE'S APPEAL BY COMMISSIONER (APPEALS) WAS BASED UPON REMAND REPORT 4 M/S. BHAGIRATHI TIE CIRCUMSTANCES, THE LD. CIT(A) BASED ON THIS REMAND REPORT BY THE A.O , GRANTED RELIEF IN THIS CASE. THE LD. CIT(A) HELD AS FOLLOWS : - 'I HAVE CONSIDERED THE FINDING OF THE AO IN THE ASSESSMENT ORDER AS WELL AS IN THE REMAND REPORT ALONG WITH THE WRITTEN SUBMISSION FILED BY THE AR DURING THE APPELLATE PROCEEDINGS, I SO CONSIDERED COMMENTS OF THE ADDL.CIT ON THE REMAND REPORT AND THE WRITTEN SUBMISSION FILED BY THE AR ON SUCH COMMENTS AS WELL. I FIND THAT THE AO HIMSELF HAS REPORTED IN THE REMAND REPORT THAT 'INSPECTOR ATTACHED TO HIS(THIS) CHARGE WAS DEPLOYED FOR TRAC SOME OF THE COMPANIES ON TEST CHECK BASIS. THE INSPECTOR HAS STATED IN HIS REPORT THAT ON VERIFICATION OF SOME OF THE ADDRESSES, HE COULD LOCATE THE NAME BOARDS OF SOME OF THE SOURCE COMPANIES DISPLAYED AT THE ADDRESSES. HE ALSO STATED THAT HE COULD SE E BOOKS OF ACCOUNTS OF SOME OF THE RESPECTIVE SOURCES COMPANIES ON DEMAND TO THE PEOPLE PRESENT THERE, IT IS REVEALED TO THE INSPECTOR THAT IN SOME CASES, THE SOURCE COMPANIES HAS TAKEN TABLE SPACE AGREEMENTS. IN SOME CASES THEY ARE OCCUPYING ON RENTAL BAS IS. SUBMISSION OF THE ASSESSEE WAS CONSIDERED, THE REPORT SUBMITTED BY THE INSPECTOR OR ALONG WITH EXTRACT OF SUPPORTING DOCUMENTS WAS ALSO CONSIDERED AND PLACED ON RECORD. NO MATERIAL (IS) FOUND IN THE ASSESSMENT RECORD WHICH INDICATES THAT EFFORT HAS BEE N GIVEN TO PROVE THE EXISTENCE AND CREDITWORTHINESS AS SUBMITTED BY THE ASSESSEE DURING THIS REMAND PROCEEDINGS. ALL THE PAPERS, COPY OF DOCUMENTS SUBMITTED DURING THE REMAND STAGE IN RESPECT OF LOANS AND ADVANCES TAKEN FROM COMPANIES ARE CAREFULLY CHECKED . FURTHER, THE AR OF THE ASSESSEES CONTENDED THAT THE ASSESSING OFFICER CONSIDERED ONLY THE ADVANCE TAKEN DURING A CERTAIN FINANCIAL YEAR BUT NOT CONSIDERED THE REPAYMENT MADE DURING THE YEAR. THE CONTENTIONS OF THE ASSESSEE IN THIS RECT. EACH ENTRY OF ADVANCE TAKEN AND GIVEN WAS VERIFIED FROM THE BANK ACCOUNT: THE BALANCE OF ADVANCE EXISTED AT THE END OF THE FINANCIAL YEAR IS SUFFICIENT TO ACQUIRE ASSETS EXISTED IN THE RIGHT SIDE OF THE BALANCE SHEET IN EACH CASE AND EACH ASSESSMENT FROM THE REMAND REPORT OF THE AO, IT IS CLEAR THAT THE AO HAD ACCEPTED AFTER DUE VERIFICATION, THE EXISTENCE AND CREDITWORTHINESS OF COMPANIES WHICH HAVE GIVEN ADVANCE TO THE ASSESSEE. THE AO HAS ALSO MADE INVESTIGATION AND GIVEN HIS FINDINGS THAT EACH ENTRY OF ADVANCE TAKEN AND GIVEN WAS VERIFIED FROM THE BANK ACCOUNT. FROM THE REPORT IT IS ALSO CLEAR THAT THE BALANCE OF ADVANCE EXISTED AT THE END OF THE FINANCIAL YEAR WAS SUFFICIENT TO ACQUIRE ASSETS EXISTING IN THE RIGHT SIDE OF THE BALANCE SHEET IN EACH CASE AND IN EACH ASSESSMENT YEAR. KEEPING IN VIEW THE CATEGORICAL FINDINGS GIVEN BY THE AO AFTER DUE VERIFICATION OF PAPERS AND DETAILS FILED AND AFTER PROPER INVESTIGATION AND REPORT BY THE INSPECTOR ATTACHED TO THE AO IN THE REMAND THE ISSUE INVOLVED IN THIS CASE HAS BEEN ADEQUATELY DISCUSSED AND ELABORATED BY THE AO. ACCORDINGLY ASSESSEE'S APPEAL ON GROUND NO 3 IS ALLOWED.' 9. ON THESE FACTS THE ISSUE IS WHETHER THE REVENUE COULD AT ALL FILE AN APPEAL BEFORE THE LE MADRAS HIGH COURT IN THE CASE OF SMT.B. JAYALAKSHMI VS ACIT (SUPRA OF THE INCOME -TAX ACT, 1961 - COMMISSIONER (APPEALS) - APPEALABLE ORDERS ASSESSMENT YEARS 1995 -96 TO 1997-98 - FOR RELEVANT YEAR, ASSESSMENT SECTION 143(1) - EQUENTLY, ASSESSING OFFICER REOPENED ASSESSMENT UNDER SECTION 147 AND MADE ADDITION BY TREATING AGRICULTURAL INCOME OF ASSESSEE AS NON - AGRICULTURAL - COMMISSIONER (APPEALS) CALLED ESSING OFFICER SUBMITTED REMAND REPORT AFTER ENQUIRY AND STATED THEREIN, THAT ASSESSEE WAS CARRYING ON AGRICULTURAL ACTIVITY AND, THUS, SHE WAS EARNING AGRICULTURAL INCOME THEREOF - COMMISSIONER (APPEALS) ON BASIS OF SAID REMAND REPORT, ALLOWED RICULTURAL INCOME OF ASSESSEE - HOWEVER, TRIBUNAL DISALLOWED SAID CLAIM OF ASSESSEE WITHOUT TAKING INTO CONSIDERATION THAT ORDER ALLOWING ASSESSEE'S APPEAL BY COMMISSIONER (APPEALS) WAS BASED UPON REMAND REPORT - WHETHER REVENUE WAS NOT ENTITLED TO FILE AN I.T.A. NO. 1593/KOL/2016 ASSESSMENT YEAR: 2009-10 M/S. BHAGIRATHI TIE -UP PVT. LTD , GRANTED RELIEF IN THIS 'I HAVE CONSIDERED THE FINDING OF THE AO IN THE ASSESSMENT ORDER AS WELL AS IN THE REMAND REPORT ALONG WITH THE WRITTEN SUBMISSION FILED BY THE AR DURING THE APPELLATE PROCEEDINGS, I SO CONSIDERED COMMENTS OF THE ADDL.CIT ON THE REMAND REPORT AND THE WRITTEN SUBMISSION FILED BY THE AR ON SUCH COMMENTS AS WELL. I FIND THAT THE AO HIMSELF HAS REPORTED IN THE REMAND REPORT THAT 'INSPECTOR ATTACHED TO HIS(THIS) CHARGE WAS DEPLOYED FOR TRAC ING SOME OF THE COMPANIES ON TEST CHECK BASIS. THE INSPECTOR HAS STATED IN HIS REPORT THAT ON VERIFICATION OF SOME OF THE ADDRESSES, HE COULD LOCATE THE NAME BOARDS OF SOME OF THE SOURCE E BOOKS OF ACCOUNTS OF SOME OF THE RESPECTIVE SOURCES COMPANIES ON DEMAND TO THE PEOPLE PRESENT THERE, IT IS REVEALED TO THE INSPECTOR THAT IN SOME CASES, THE SOURCE COMPANIES HAS TAKEN TABLE SPACE IS. SUBMISSION OF THE ASSESSEE WAS CONSIDERED, THE REPORT SUBMITTED BY THE INSPECTOR OR ALONG WITH EXTRACT OF SUPPORTING DOCUMENTS WAS ALSO CONSIDERED AND PLACED ON RECORD. NO MATERIAL (IS) FOUND IN THE N GIVEN TO PROVE THE EXISTENCE AND CREDITWORTHINESS AS SUBMITTED BY THE ASSESSEE DURING THIS REMAND PROCEEDINGS. ALL THE PAPERS, COPY OF DOCUMENTS SUBMITTED DURING THE REMAND STAGE IN RESPECT OF LOANS AND ADVANCES TAKEN . FURTHER, THE AR OF THE ASSESSEES CONTENDED THAT THE ASSESSING OFFICER CONSIDERED ONLY THE ADVANCE TAKEN DURING A CERTAIN FINANCIAL YEAR BUT NOT CONSIDERED THE REPAYMENT MADE DURING THE YEAR. THE CONTENTIONS OF THE ASSESSEE IN THIS RECT. EACH ENTRY OF ADVANCE TAKEN AND GIVEN WAS VERIFIED FROM THE BANK ACCOUNT: THE BALANCE OF ADVANCE EXISTED AT THE END OF THE FINANCIAL YEAR IS SUFFICIENT TO ACQUIRE ASSETS EXISTED IN THE RIGHT SIDE OF THE BALANCE SHEET IN EACH CASE AND EACH ASSESSMENT FROM THE REMAND REPORT OF THE AO, IT IS CLEAR THAT THE AO HAD ACCEPTED AFTER DUE VERIFICATION, THE EXISTENCE AND CREDITWORTHINESS OF COMPANIES WHICH HAVE GIVEN ADVANCE TO THE ASSESSEE. EACH ENTRY OF ADVANCE TAKEN AND GIVEN WAS VERIFIED FROM THE BANK ACCOUNT. FROM THE REPORT IT IS ALSO CLEAR THAT THE BALANCE OF ADVANCE EXISTED AT THE END OF THE FINANCIAL YEAR WAS SUFFICIENT TO ACQUIRE ASSETS EXISTING IN IN EACH CASE AND IN EACH ASSESSMENT YEAR. KEEPING IN VIEW THE CATEGORICAL FINDINGS GIVEN BY THE AO AFTER DUE VERIFICATION OF PAPERS AND DETAILS FILED AND AFTER PROPER INVESTIGATION AND REPORT BY THE INSPECTOR ATTACHED TO THE AO IN THE REMAND THE ISSUE INVOLVED IN THIS CASE HAS BEEN ADEQUATELY DISCUSSED AND ELABORATED BY 9. ON THESE FACTS THE ISSUE IS WHETHER THE REVENUE COULD AT ALL FILE AN APPEAL BEFORE THE LE MADRAS HIGH COURT IN THE CASE OF SMT.B. JAYALAKSHMI VS ACIT (SUPRA APPEALABLE ORDERS FOR RELEVANT YEAR, ASSESSMENT AND MADE ADDITION BY COMMISSIONER (APPEALS) CALLED ESSING OFFICER SUBMITTED REMAND REPORT AFTER ENQUIRY AND STATED THEREIN, THAT ASSESSEE WAS CARRYING ON AGRICULTURAL ACTIVITY AND, THUS, SHE WAS EARNING COMMISSIONER (APPEALS) ON BASIS OF SAID REMAND REPORT, ALLOWED HOWEVER, TRIBUNAL DISALLOWED SAID CLAIM OF ASSESSEE WITHOUT TAKING INTO CONSIDERATION THAT ORDER ALLOWING ASSESSEE'S APPEAL BY COMMISSIONER WHETHER REVENUE WAS NOT ENTITLED TO FILE AN APPEAL BEFORE TRIBUNAL AGAINST ORDER OF COMMISSIONER (APPEALS), WHICH WAS BASED UPON A REMAND REPORT - HELD, YES [PARAS 19, 23 AND 24] [IN FAVOUR OF ASSESSEE/MATTER REMANDED] 10. THE 'E 'BENCH OF DELHI ITAT IN THE CASE OF TAKEN A SIMILAR VIEW. 12. BE AS IT MAY, THE LD. DR COULD NOT BRING OUT ANY MATERIAL TO CONTROVERT THE FACTUAL FINDINGS GIVEN IN THE REMAND REPORT OF THE AO. THUS ON THIS GROUND ALSO THE 4. APPLYING THE PROPOSITION OF LAW LAID DOWN IN THESE CASE LAWS TO THE FACTS OF THE CASE, WE HOLD THAT THE ASSESSING OFFICER CANNOT FILE AN APPEAL AGAINST HIS OWN FACTUAL FINDING GIVEN BY HIM IN THE REMAND REPORT. HENCE WE DIS MISS THIS APPEAL OF THE REVENUE AS NOT MAINTAINABLE. 4.2. CONSISTENT WITH THE VIEW TAKEN THEREIN AND APPLYING THE PROPOSITION OF THE LAW LAID DOWN IN THE ABOVE CASE - FILE AN APPEAL AGAINST HIS OWN FINDINGS IN THE REMAND REPORT. HENCE, THIS APPEAL OF THE REVENUE IS DISMISSED AS NOT MAINTAINABLE. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. KOLKATA, THE SD/- [ S.S. GODARA ] JUDICIAL MEMBER DATED : 20.09.2019 {SC SPS} 5 M/S. BHAGIRATHI TIE BEFORE TRIBUNAL AGAINST ORDER OF COMMISSIONER (APPEALS), WHICH WAS BASED UPON A REMAND HELD, YES [PARAS 19, 23 AND 24] [IN FAVOUR OF ASSESSEE/MATTER REMANDED] 10. THE 'E 'BENCH OF DELHI ITAT IN THE CASE OF ACIT VS R.P.G.CREDIT & CAPITAL LTD. (S 12. BE AS IT MAY, THE LD. DR COULD NOT BRING OUT ANY MATERIAL TO CONTROVERT THE FACTUAL FINDINGS GIVEN IN THE REMAND REPORT OF THE AO. THUS ON THIS GROUND ALSO THE APPEAL OF THE REVENUE FAILS' 4. APPLYING THE PROPOSITION OF LAW LAID DOWN IN THESE CASE LAWS TO THE FACTS OF THE CASE, WE HOLD THAT THE ASSESSING OFFICER CANNOT FILE AN APPEAL AGAINST HIS OWN FACTUAL FINDING GIVEN BY HIM IN THE MISS THIS APPEAL OF THE REVENUE AS NOT MAINTAINABLE. CONSISTENT WITH THE VIEW TAKEN THEREIN AND APPLYING THE PROPOSITION OF THE LAW - LAW, WE HOLD TH AT THE ASSESSING OFFICER HAS NO OWN FINDINGS IN THE REMAND REPORT. HENCE, THIS APPEAL OF THE REVENUE IS DISMISSED AS NOT MAINTAINABLE. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. KOLKATA, THE 20 TH DAY OF SEPTEMBER, 201 9 [ J. SUDHAKAR REDDY ACCOUNTANT MEMBER I.T.A. NO. 1593/KOL/2016 ASSESSMENT YEAR: 2009-10 M/S. BHAGIRATHI TIE -UP PVT. LTD BEFORE TRIBUNAL AGAINST ORDER OF COMMISSIONER (APPEALS), WHICH WAS BASED UPON A REMAND HELD, YES [PARAS 19, 23 AND 24] [IN FAVOUR OF ASSESSEE/MATTER REMANDED] & CAPITAL LTD. (S UPRA) HAD 12. BE AS IT MAY, THE LD. DR COULD NOT BRING OUT ANY MATERIAL TO CONTROVERT THE FACTUAL FINDINGS APPEAL OF THE REVENUE FAILS' 4. APPLYING THE PROPOSITION OF LAW LAID DOWN IN THESE CASE LAWS TO THE FACTS OF THE CASE, WE HOLD THAT THE ASSESSING OFFICER CANNOT FILE AN APPEAL AGAINST HIS OWN FACTUAL FINDING GIVEN BY HIM IN THE CONSISTENT WITH THE VIEW TAKEN THEREIN AND APPLYING THE PROPOSITION OF THE LAW AT THE ASSESSING OFFICER HAS NO LOCUS STANDI TO OWN FINDINGS IN THE REMAND REPORT. HENCE, THIS APPEAL OF THE 9 . SD/- SUDHAKAR REDDY ] ACCOUNTANT MEMBER COPY OF THE ORDER FORWARDED TO: 1. M/S. BHAGIRATHI TIE- UP PVT. LTD 33A, J.L. NEHRU ROAD KOLKATA 700 071 2. INCOME TAX OFFICER, WARD- 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6 M/S. BHAGIRATHI TIE COPY OF THE ORDER FORWARDED TO: UP PVT. LTD 8(1), KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES I.T.A. NO. 1593/KOL/2016 ASSESSMENT YEAR: 2009-10 M/S. BHAGIRATHI TIE -UP PVT. LTD TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES