INDOFIL INDUSTRIES LTD, MUMBAI V. DCIT 6(1), MUMBAI

ITA 838/MUM/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3326 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 18-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABI RAMA KARTIKEYAN
• Assessee Lawyers: HARESH G BUCH
• Section: 154; 143(3); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI G. MANJUNATHA , HON'BLE ACCOUNTANT MEMBER ITA NO. 838 /MUM/201 6 (A.Y: 2011 - 12) M/S. INDOFIL INDUSTRIES LIMITED KALPATRU SQUARE, 4 TH FLOOR, KONDIVITA ROAD, OFF ANDHERI KURLA ROAD, ANDHERI (EAST), MUMBAI 400 059 PAN: AABCI 4568 D V. A.C.I.T, CIRCLE 10(1)(1) {ERSTWHILE, DY.CIT 6(1)} MUMBAI (APPELLANT) (RESPONDENT) ITA NOS. 481 & 5315/MUM/2016 (A.YS: 2011 - 12 & 2011 - 12) D.C.I.T, CIRCLE 10(1)(1) R.NO. 209, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400 020 V. M/S. INDOFIL INDUSTRIES LIMITED KALPATRU SQUARE 4 TH FLOOR, KONDIVITA ROAD, OFF ANDHERI KURLA ROAD, ANDHERI (EAST), MUMBAI 400 059 PAN: AABCI 4568 D (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI HARESH G. BUCH & SHRI MS. MOKSHA MEHTA DEPARTMENT BY : SHRI ABI RAMA KARTIK E YAN DATE OF HEARING : 1 5 .11.2018 DATE OF PRONOUNCEMENT : 13 .02 .2019 2 ITA NO. 838, 481 & 5315/MUM/2016 (A.Y: 2011 - 12) M/S. INDOFIL INDUSTRIES LIMITED O R D E R PER C. N. PRASAD (JM) 1. THESE THREE APPEALS ARE FILED BY THE ASSESSEE AND REVENUE FOR THE ASSESSMENT YEAR 2011 - 12. CROSS APPEALS WERE FILED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 12, MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 04.11.2015 ARISING OUT OF THE PROCEEDINGS U /S. 143(3) OF THE ACT AND THE REVENUE FILED THE APPEAL AGAINST THE ORDER OF THE LD.CIT(A) ARISING OUT OF THE PROCEEDINGS U/S. 154 OF THE ACT. 2. THE ASSESSEE AT THE OUTSET, RAISED GROUND NO.1 CONTENDING THAT LD.CIT(A) ERRED IN LAW AND ON FACTS, IN EXCEEDING THE POWERS GRANTED U/S.251(1)(A) OF THE ACT BY GIVING DIRECTIONS TO THE ASSESSING OFFICER FOR VERIFICATION OF CLAIMS MADE BY THE ASSESSEE, THEREBY SENDING BACK THE ISSUES RAISED IN APPEAL TO THE ASSESSING OFFICER INSTEAD OF DECIDING THEM. ASSESSEE ALSO RAISED GROUND THAT DIRECTIONS OF THE LD. CIT(A) BE HELD AS BAD IN LAW AND LD. CIT(A) BE DIRECTED TO GIVE CLEAR / CATEGORICAL FINDINGS AND DECIDE THE GROUNDS RAISED BEFORE HER. 3. LD. COUNSEL FOR THE ASSESSEE, REFERRING TO THE ORDER PASSED BY THE LD. CIT(A) SUBMITTED THAT IN ALL THE ISSUES , THE LD. CIT(A) DIRECTED THE ASSESSING OFFICER TO VERIFY THE CLAIM OF THE ASSESSEE AND ALLOW , IF FOUND TO BE CORRECT. ALL THE GROUNDS HAVE BEEN DECIDED IN THAT MANNER THEREBY RESTORING THE ISSUES TO THE FILE OF THE ASSESSING OFFICER FOR V ERIFICATION AND 3 ITA NO. 838, 481 & 5315/MUM/2016 (A.Y: 2011 - 12) M/S. INDOFIL INDUSTRIES LIMITED DECISION, THUS, EXCEEDING THE JURISDICTION U/S.251(1)(A) OF THE ACT AS THE LD.CIT(A) HAS NO JURISDICTION TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER. 4. LD. COUNSEL FOR THE ASSESSEE REFERRING TO CLAUSE 77 OF THE FINANCE BILL, 200 1 I.E. PROVISIONS RELATING TO DIRECT TAXES AND MEASURES TO REDUCE LITIGATION SUBMITS THAT PROVISIONS U/S. 251 OF THE ACT WAS AMENDED WHEREBY THE COMMISSIONER (APPEALS) IS PREVENTED TO SET ASIDE THE ASSESSMENT OR REFER THE CASE BACK TO THE ASSESSING OFFICER FOR MAKING THE FRESH ASSESSMENT. LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT ACTION OF THE LD. CIT(A) IN DIRECTING HE ASSESSING OFFICER TO EXAMINE THE ALLOWABILITY OF A CLAIM ACCORDING TO THE LAW AMOUNTS TO SETTING ASIDE OF THE ASSESSMENT AND IN VIEW OF AMENDMENT PROVISIONS IT AMOUNTS TO MISTAKE APPARENT FROM RECORD AS SUCH IS RECTIFIABLE U/S. 154 OF THE ACT. 5. RELIANCE IS PLACED ON THE DECISION OF THE HONBLE KERALA HIGH COURT IN THE CASE OF CIT V. PREMKUMAR [87 TAXMANN.COM 268] AND THE DECISION OF THE BANGALORE BENCH OF THE TRIBUNAL IN THE CASE OF DCIT V. AOL ONLINE INDIA PVT. LTD., [80 TAXMANN.COM 296 (BANG, ITAT)]. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDER OF THE LD.CIT(A). ON A PERUSAL OF THE LD. CIT(A) ORDER, WE FIND THAT THE LD.C IT(A) DISPOSED OFF ALL THE GROUNDS OF APPEAL WITH A DIRECTION TO VERIFY THE CLAIM 4 ITA NO. 838, 481 & 5315/MUM/2016 (A.Y: 2011 - 12) M/S. INDOFIL INDUSTRIES LIMITED AND DELETE THE ADDITION IF FOUND TO BE CORRECT OR DECIDE AS PER LAW, WITHOUT GIVING ANY INDEPENDENT FINDING, THIS IN OUR VIEW AMOUNTS TO EXCEEDING THE JURISDICTION AS CONTEMP LATED IN PROVISIONS U/S.251(1)(A) OF THE ACT. IN THE CASE OF CIT V. PREMKUMAR (SUPRA) THE HONBLE KERALA HIGH COURT HELD THAT APPELLATE COMMISSIONER MIGHT CONFIRM, REDUCE, ENHANCE OR ANNUL ASSESSMENT BUT HE COULD NOT REFER CASE BACK TO ASSESSING OFFICER F OR MAKING THE FRESH ASSESSMENT NOR COULD HE DIRECT THE ASSESSING OFFICER TO DECIDE IN ACCORDANCE WITH HIS DIRECTIONS. WHILE HOLDING SO, IT HAS BEEN OBSERVED AS UNDER: - 29. SECTION 251 OF THE ACT SPELLS OUT THE POWERS OF THE COMMISSIONER (APPEALS). BEFO RE THE AMENDMENT BY FINANCE (NO. 2) ACT, 2014, THE PROVISION READ: 251. POWERS OF THE [* * *] COMMISSIONER (APPEALS) . - (1) IN DISPOSING OF AN APPEAL, THE [* * *] COMMISSIONER (APPEALS) SHALL HAVE THE FOLLOWING POWERS - (A) IN AN APPEAL AGAINST AN ORDER OF ASSESSMENT HE MAY CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT; [* * *] [(AA) . . . (B) IN AN APPEAL AGAINST AN ORDER IMPOSING A PENALTY, HE MAY CONFIRM OR CANCEL SUCH ORDER OR VARY IT SO AS EITHER TO ENHANCE OR TO REDUCE THE PENALTY; (C) IN ANY OTHER CASE, HE MAY PASS SUCH ORDERS IN THE APPEAL AS HE THINKS FIT. (2) THE [* * *] COMMISSIONER (APPEALS) SHALL NOT ENHANCE AN ASSESSMENT OR A PENALTY OR REDUCE THE AMOUNT OF REFUND UNLESS THE APPELLANT HAS HAD A REASONABLE OPPORTUNITY OF SHOWING CAUSE AGAINST SUCH ENHANCEMENT OR REDUCTION. EXPLANATION. - IN DISPOSING OF AN APPEAL, THE [* * *] COMMISSIONER (APPEALS) MAY CONSIDER AND DECIDE ANY MATTER ARISING OUT OF PROCEEDINGS IN WHICH THE ORDER APPEALED AGAINST WAS PASSED, NOTWITHSTANDING THAT SUCH MATTER WAS NOT RAISED BEFORE THE [* * *] COMMISSIONER (APPEALS) BY THE APPELLANT. 30. AS SEEN FROM THE ABOVE EXTRACT, THE PROVISION EMPOWERS THE APPELLATE AUTHORITY, IN AN APPEAL AGAINST AN ORDER OF ASSESSMENT, TO CONFIRM, REDUCE, ENHANCE, OR ANNUL THE ASSESSMENT. TR UE, AS RIGHTLY CONTENDED BY SRI MATHER, THE ASSESSEE'S COUNSEL, BEFORE 01.06.2001, SECTION 251 (1) (A) HAS AN APPENDAGE: 'OR HE MAY SET ASIDE THE ASSESSMENT AND REFER THE CASE BACK TO THE ASSESSING OFFICER FOR MAKING A FRESH ASSESSMENT IN ACCORDANCE WITH T HE DIRECTIONS GIVEN BY THE COMMISSIONER (APPEALS) AND AFTER MAKING SUCH FURTHER INQUIRY AS MAY BE NECESSARY, THE ASSESSING 5 ITA NO. 838, 481 & 5315/MUM/2016 (A.Y: 2011 - 12) M/S. INDOFIL INDUSTRIES LIMITED OFFICER SHALL THEREUPON PROCEED TO MAKE SUCH FRESH ASSESSMENT AND DETERMINE, WHERE NECESSARY, THE AMOUNT OF TAX PAYABLE ON THE BASIS OF SUCH FRESH ASSESSMENT;'. 31. SRI MATHER RELIES ON A CBDT'S CIRCULAR TO DRIVE HOME HOW THE AMENDMENT HAS AFFECTED THE APPELLATE COMMISSIONER'S POWERS. HE HAS CITED THE CIRCULAR IN HIS WRITTEN SUBMISSIONS. PARA 78 OF THE CLARIFICATORY CIRCULAR NOTES THAT THE POWER OF THE APPELLATE COMMISSIONER DOES NOT INCLUDE THE POWER TO SET ASIDE THE ASSESSMENT. IT WAS TO FINALIZE THE ASSESSMENT EARLY AND TO AVOIDING PROLONGED LITIGATION. THE APPELLATE COMMISSIONER WILL NOT SET ASIDE THE ASSESSMENT AND REFER THE CASE BA CK TO THE ASSESSING OFFICER FOR MAKING FRESH ASSESSMENT. BUT THE APPELLATE COMMISSIONER CONTINUES TO HAVE THE POWERS UNDER SECTION 250 TO INQUIRE FURTHER, OR TO DIRECT THE ASSESSING OFFICER TO INQUIRE AND REPORT THE RESULT TO HIM. AFTER RECEIVING THE ASSES SING OFFICERS' ENQUIRY REPORT, THE AUTHORITY CAN RELY ON IT OR GATHER ADDITIONAL FACTS OR EVIDENCE. 32. SRI MATHER ARGUES THAT THE APPELLATE COMMISSIONER HAS BEEN STRIPPED OF THE POWER TO REMAND AND REMIT NOT TO PROTECT AN ASSESSEE'S INTERESTS BUT TO AVOID PROLONGED ASSESSMENT PROCEEDINGS, WHICH, IN FACT, SERVES A PUBLIC PURPOSE. 33. THE ASSESSEE CONTENDS THAT THE REMAND IS BEYOND THE APPELLATE COMMISSIONER'S POWERS, AND HIS DIRECTION TO THE PRIMARY AUTHORITY TO CONSIDER A MATTER UNDER A PARTICULAR PROVISIO N IS MUCH WORSE - INDEFENSIBLE. ON THE CONTRARY, THE REVENUE ASSERTS THAT PREMKUMAR FIRST RAISED AN OBJECTION THAT SECTION 158BC HAD NO APPLICATION. THIS DEFENCE MERITED THE APPELLATE COMMISSIONER'S ACCEPTANCE; IT LED TO THE REMAND. ABSENT ANY CHALLENGE TO THE ORDER OF REMAND, THE ORDER'S IMPACT CANNOT BE WISHED AWAY: PREMKUMAR CANNOT HUNT WITH THE HOUND AND RUN WITH THE HARE; HE SHOULD CHOOSE EITHER. 34. A WAIVER IS AN INTENTIONAL RELINQUISHMENT OF A KNOWN RIGHT, BUT OBVIOUSLY AN OBJECTION TO JURISDICTION, LAYS DOWN THE SUPREME COURT DHIRENDRA NATH GORAI V. SUDHIR CHANDRA GHOSH, AIR 1964 SC 1300 , CANNOT BE WAIVED, FOR CONSENT CANNOT GIVE A COURT JURISDICTION WHERE THERE IS NONE. EVEN IF THERE IS INHERENT JURISDICTION, CERTAIN PROVISIONS CANNOT BE WAIVED. MA XWELL IN HIS BOOK 'ON THE INTERPRETATION OF STATUTES', 11TH EDN., AT P. 375, DESCRIBES THE RULE: 'ANOTHER MAXIM WHICH SANCTIONS THE NON - OBSERVANCE OF A STATUTORY PROVISION IS THAT CUILIBET LICET RENUNTIARE JURI PRO SE INTRODUCTO. EVERYONE HAS A RIGHT TO WA IVE AND TO AGREE TO WAIVE THE ADVANTAGE OF A LAW OR RULE MADE SOLELY FOR THE BENEFIT AND PROTECTION OF THE INDIVIDUAL IN HIS PRIVATE CAPACITY, WHICH MAY BE DISPENSED WITH WITHOUT INFRINGING ANY PUBLIC RIGHT OR PUBLIC POLICY.' AS QUOTED IN NATH GORAI (SUPRA ) 35. THE SAME RULE IS RESTATED IN CRAIES ON STATUTE LAW, 6TH EDN., AT P. 269, THUS: 'AS A GENERAL RULE, THE CONDITIONS IMPOSED BY STATUTES WHICH AUTHORISE LEGAL PROCEEDINGS ARE TREATED AS BEING INDISPENSABLE TO GIVING THE COURT JURISDICTION. BUT IF IT APP EARS THAT THE STATUTORY CONDITIONS WERE INSERTED BY THE LEGISLATURE SIMPLY FOR THE SECURITY OR BENEFIT OF THE PARTIES TO THE ACTION THEMSELVES, AND THAT NO PUBLIC INTERESTS ARE INVOLVED, SUCH CONDITIONS WILL NOT BE CONSIDERED AS INDISPENSABLE, AND EITHER P ARTY MAY WAIVE THEM WITHOUT AFFECTING THE JURISDICTION OF THE COURT.' 36. THE THREE - JUDGE BENCH FINALLY HOLDS IN DHIRENDRA NATH THAT WHERE THE COURT ACTS WITHOUT INHERENT JURISDICTION, A PARTY AFFECTED CANNOT BY WAIVER CONFER JURISDICTION ON IT, WHICH IT H AS NOT. WHERE SUCH JURISDICTION IS NOT WANTING, A DIRECTORY PROVISION CAN OBVIOUSLY BE WAIVED. BUT A MANDATORY PROVISION CAN ONLY BE WAIVED IF IT IS NOT CONCEIVED IN THE PUBLIC INTERESTS, BUT IN THE INTERESTS OF THE PARTY THAT WAIVES IT. 37. A DISTINCTION EXISTS BETWEEN THE PROVISIONS THAT CONFER JURISDICTION AND THOSE THAT REGULATE PROCEDURE. JURISDICTION CAN NEITHER BE WAIVED NOR CREATED BY CONSENT, HOLDS A CONSTITUTION BENCH OF THE SUPREME COURT IN SUPDT. OF TAXES, DHUBRI V. ONKARMAL NATHMAL TRUST AIR 19 75 SC 2065 . A PROCEDURAL PROVISION MAY BE WAIVED BY CONDUCT OR AGREEMENT. QUOTING WITH APPROVAL KAMMINS BALLROOMS CO. LTD. V. ZENITH 6 ITA NO. 838, 481 & 5315/MUM/2016 (A.Y: 2011 - 12) M/S. INDOFIL INDUSTRIES LIMITED INVESTMENTS (TORQUAY) LTD., 81971 A.C. 850 ONKARMAL, PER C. N. RAY, C.J., FURTHER OBSERVES THAT WAIVER ARISES WHERE A PERSO N IS ENTITLED TO ALTERNATIVE RIGHTS INCONSISTENT WITH ONE ANOTHER. A PERSON IS SOMETIMES SAID TO HAVE 'WAIVED'' THE ALTERNATIVE RIGHT, AS FOR INSTANCE A RIGHT TO FORFEIT A LEASE OR TO RESCIND A CONTRACT OF SALE FOR WRONGFUL REPUDIATION OR BREACH OF CONDITI ON. THIS IS ALSO SOMETIMES DESCRIBED AS 'ELECTION' RATHER THAN 'WAIVER'. 38. ONKARMAL GOES ON TO OBSERVE THAT THERE CAN BE NO WAIVER OF A STATUTORY REQUIREMENT OR PROVISION WHICH GOES TO THE JURISDICTION, OF ASSESSMENT. THE ORIGIN OF THE ASSESSMENT IS EITH ER AN ASSESSEE FILING A RETURN AS CONTEMPLATED IN THE ACT OR AN ASSESSEE BEING CALLED UPON TO FILE A RETURN AS CONTEMPLATED IN THE ACT. ONKARMAL POSTULATES THAT REVENUE STATUTES ARE BASED ON PUBLIC POLICY; REVENUE STATUTES PROTECT THE PUBLIC ON THE ONE HAN D AND CONFER POWER ON THE STATE ON THE OTHER. 39. ONKARMAL PER M. HAMEEDULLAH BEG, J. (AS HIS LORDSHIP THEN WAS), HOLDS THAT THE WAIVER, EVEN WHERE BOTH SIDES HAVE AGREED TO WAIVE THE OPERATION OF A STATUTORY PROVISION, CANNOT EXTEND TO A CASE IN WHICH TH E EFFECT MAY BE EITHER TO OUST THE JURISDICTION CONFERRED BY STATUTE OR TO CONFER A JURISDICTION WHICH, ACCORDING TO THE STATUTE, IS NOT THERE. 40. IN COMMISSIONER OF INCOME TAX V. JOLLY FANTASY WORLD LTD. [2015] 373 ITR 530 (GUJ) , A DIVISION BENCH OF THE GUJARAT HIGH COURT, RELYING ON THE ABOVE TWO JUDGMENTS, HELD, SOMEWHAT UNDER SIMILAR CIRCUMSTANCES AS WE FACE NOW, THAT AS FOR THE ESTOPPEL OR WAIVER, IT IS IMMATERIAL THAT THE ASSESSEE PARTICIPATED IN THE EARLIER ROUND OF LITIGATION EITHER BEFORE THE ASSE SSING OFFICER OR BEFORE THE TRIBUNAL, OR CONSEQUENTLY BEFORE THE ASSESSING OFFICER. IT CANNOT BAR THE ASSESSEE FROM CHALLENGING THE JURISDICTIONAL AUTHORITY OF AN ADJUDICATOR. 41. THE HIGH COURT HAS UNDOUBTEDLY JURISDICTION TO DECIDE WHETHER THE TAXING AUT HORITY, OBSERVED THE SUPREME COURT IN BHOPAL SUGAR INDUSTRIES LTD. V. D. P. DUBE, SALES TAX OFFICER 10AIR 1967 SC 549, AS QUOTED IN OKAYTI TEA CO. LTD. VS. INCOME TAX OFFICER [160 ITR 487 (CAL)] , HAS ARROGATED TO HIMSELF POWER WHICH HE DOES NOT POSSESS, OR HAS COMMITTED A SERIOUS ERROR OF PROCEDURE WHICH HAS AFFECTED THE VALIDITY OF HIS CONCLUSION OR EVEN WHERE THE TAXING AUTHORITY THREATENS TO RECOVER TAX ON INTERPRETING THE STATUTE WHICH IS ERRONEOUS. 42. INDEED, THE ASSESSEE ARGUES THAT THE AMENDMENT TOO K THE APPELLATE AUTHORITY'S POWER TO REMAND THE MATTER. ACCORDING TO HIM, THIS DENUDATION AIMS TO SERVE A PUBLIC INTEREST: CURTAILING THE ADJUDICATORY DELAYS AND COMPLETING THE ASSESSMENTS QUICKLY. 43. THE REVENUE MAINTAINS THAT THE AUTHORITY WHO PASSED TH E ORDER HAS THE POWER TO ENTERTAIN AN APPEAL, IN THE FIRST PLACE. IF HE HAS PASSED AN ORDER WHICH DOES NOT STRICTLY CONFORM WITH THE STATUTORY MANDATE, HE HAS, AT BEST, EXERCISED HIS POWER IRREGULARLY OR EVEN ILLEGALLY. BUT, BY NO STRETCH, HE ACTED WITHOUT AUTHORITY; NOR HAS HIS ORDER BECOME NULLITY. 44. WHEN AN ORDER UNDER SECTION 271 (1) (C) IS PASSED IN VIOLATION OF SECTION 274 (1), IT IS STATUTORY VIOLATION, OBSERVES THE HIGH COURT OF ANDHRA PRADESH IN THAKUR V. HARI PRASAD. THE ORDER MAY HAVE VIOLATED A STATUTE, AND IT MAY AMOUNT TO AN ILLEGAL ORDER. BUT IT CAN BE CORRECTED UNDER SECTION 254 OF THE ACT. THE ORDER DOES NOT, THEREBY, BECOME VOID. UNCORRECTED IN APPROPRIATE PROCEEDINGS, THE ORDER CONTINUES TO HOLD GOOD AND REMAINS IN CURRENCY. 45. IN SEA P EARL INDUSTRIES THE SUPREME COURT EXAMINED SECTION 80 - HHC OF THE ACT. THE COURT OBSERVED THAT THE OBJECT OF SECTION 80 - HHC IS TO GRANT AN INCENTIVE TO EARNERS OF FOREIGN EXCHANGE. THE MATTER WILL, THEREFORE, MUST BE CONSIDERED BY REFERRING TO THIS OBJECT. IN OTHER WORDS, SEA PEARL ADVOCATES THE WELL - ENTRENCHED RULE OF PURPOSIVE INTERPRETATION. 46. IN OKAYTI TEA, RELIED ON BY THE REVENUE, THE CALCUTTA HIGH COURT HAS HELD THAT IT IS NOT OPEN TO A PARTY TO MAKE A GRIEVANCE ABOUT APPLYING A RULE UNLESS HE COME S UP 7 ITA NO. 838, 481 & 5315/MUM/2016 (A.Y: 2011 - 12) M/S. INDOFIL INDUSTRIES LIMITED WITH APPROPRIATE PROCEEDINGS TO HAVE THE RULE'S APPLICABILITY PROPERTY TESTED. ONCE THE PERSON ACTS AT HIS OWN PERIL BY NOT CONTESTING A PARTICULAR DIRECTIVE, HE CANNOT URGE IN THE PROCEEDINGS UNDER ARTICLE 226 OF THE CONSTITUTION ALL THE QUESTIONS WH ICH HE COULD HAVE RAISED IN A REFERENCE, FOR THE JURISDICTION EXERCISED BY THE COURT UNDER ARTICLE 226 IS LIMITED. 47. ALL THE ABOVE PRECEDENTS EXAMINED, WE RECKON THAT THE HOLDING OF DHIRENDRA NATH, ONKARMAL, AND BHOPAL SUGAR INDUSTRIES IS UNMISTAKABLE. U NDER THE AMENDED SECTION 251 OF THE ACT, THE APPELLATE COMMISSIONER MAY CONFIRM, REDUCE, ENHANCE, OR ANNUL THE ASSESSMENT. BUT HE CANNOT REFER THE CASE BACK TO THE ASSESSING OFFICER FOR MAKING A FRESH ASSESSMENT; NOR CAN HE DIRECT THE OFFICER TO DECIDE IN ACCORDANCE WITH HIS DIRECTIONS. 7. SINCE THE LD. CIT(A) DIRECTED THE ASSESSING OFFICER TO VERIFY THE CLAIM AND ALLOW IN ACCORDANCE WITH LAW OR IN ACCORDANCE WITH HER DIRECTIONS , I N OUR VIEW, SHE TRAVELLED BEYOND THE SCOPE OF THE PROVISIONS U/S.251(1)(A) OF THE ACT. THUS, RESPECTFULLY FOLLOWING THE ABOVE DECISION, WE SET ASIDE THE ORDER OF THE LD.CIT(A) AND RESTORE ALL THE ISSUES TO THE FILE OF THE LD. CIT(A) FOR DENOVO ADJUDICATION. SINCE WE HAVE RESTORED ALL THE ISSUES IN APPEAL OF THE ASSESSEE TO THE FILE OF THE LD. CIT(A) THE ISSUES RAISED IN THE GROUNDS OF APPEAL BY THE REVENUE ALSO RESTORED TO THE FILE OF THE LD. CIT(A) FOR DENOVO ADJUDICATION. 8. IN SO FAR AS THE GROUNDS OF APPEAL RAISED BY THE REVENUE IN ITA.NO. 5315/MUM/2016 AGAINST THE ORDER PASSED BY THE LD. CIT(A) DATED 27.06.2015 U/S. 154 OF THE ACT IS CONCERNED, AS WE RESTORED ALL THE ISSUES TO THE FILE OF THE LD.CIT(A), THIS APPEAL BECOMES INFRUCTUOUS AND THEREFORE THE SAME IS DISMISSED AS INFRUCTUOUS. SINCE WE HAVE RESTORED ALL THE ISSUES TO THE FILE OF THE LD. CIT(A) THE OTHER CONTENTIONS ON MERITS RAISED BY THE LD. COUNSEL FOR THE ASSESSEE ARE NOT BEING DEALT WITH . 8 ITA NO. 838, 481 & 5315/MUM/2016 (A.Y: 2011 - 12) M/S. INDOFIL INDUSTRIES LIMITED 9. IN THE RESULT, APPEAL OF THE ASSESSEE IN ITA.NO. 838/MUM/2016 AND APPEAL OF THE REVENUE IN ITA.NO. 4 81/MUM/2016 ARE ALLOWED FOR STATISTICAL PURPOSE AND APPEAL OF THE REVENUE IN ITA.NO. 5315/MUM/2016 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 13 TH FEBRUARY , 2019 SD/ - SD/ - ( G. MANJUNATHA ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 13 / 0 2 / 2019 GIRIDHAR , S R. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM