2009 (11) TMI 416

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.... JUDGMENT The judgment of the court was delivered by C. N. Ramachandran Nair J.- This appeal is filed by the assessee against the order of the Tribunal allowing the Department's appeal exparte by reversing the order of the Commissioner of Income-tax (Appeals), which was decided substantially in favour of the assessee for the assessment year 2004-05. 2. We have heard the counsel appearin....

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....owever, the Tribunal volunteered to consider the maintainability of the appeal before the first appellate authority and following the judgment of the Madhya Pradesh High Court in CIT v. D and HSecheron Electrodes Ltd. [2008] 301 ITR 20, set aside the order of the Commissioner of Income-tax (Appeals) as one issued without jurisdiction.  The finding of the Tribunal is that when assessment is re....

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....y in respect of so much of the additions made in the assessment based on the findings of the Commissioner in the order issued under section 263. In this case, it is seen that the Commissioner has not independently decided on any addition or disallowance. On the other hand, he expressed doubt about the correctness of the findings in the original assessment and ordered detailed reexamination of the ....

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....n holding that the appeal before the first appellate authority was not maintainable. In fact, since the Department has contested the finding of the appellate authority on the merits, it was the duty of the Tribunal to consider the order of the Commissioner of Income-tax (Appeals) on the merits and decide the appeal on every ground raised. We, therefore, allow the appeal by setting aside the order ....