2011 (2) TMI 949

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.... and in the circumstances of the case, the ITAT was correct in law in accepting the plea of the assessee and remanding the issue to the file of the Assessing Officer instead of remanding the matter to the CIT(A) whose order was challenged by the assessee? 2. Whether on the facts and in the circumstances of the case, the ITAT was correct in law in remanding the issue of disallowance of loss of Rs. 18,21,20,035 to the file of the Assessing Officer on the basis that the CIT(A) did not adjudicate the ground No. 2 raised before him by the assessee while as per record, the CIT(A) had duly adjudicated the said ground vide his order dated 14-1-2010? 3. Whether on the facts and in the circumstances of the case, the ITAT was correct in law in r....

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....upport. Furthermore, the Assessing Officer proceeded on a wrong assumption that the wheat could not be exported by M/s. PEC Ltd., as it was unfit for human consumption. Quite clearly, M/s. PEC Ltd., has admitted of having exported the wheat and in any case, the wheat was to be exported as cattle feed, as clarified by the assessee that the wheat purchased was not meant for human consumption. Another plea of the Assessing Officer was that in the absence of FIR being lodged, the assessee could not be said to have evidenced the loss. On this aspect, we find that the objection of the Assessing Officer is quite superfluous. Merely because the assessee has not chosen to pursue the matter by way of an FIR, cannot obviate the existence of loss, if a....

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.... to have been issued by the Assessing Officer intimating the points on the basis of which the claims of the assessee for loss was rejected by the Assessing Officer. In our view, had the Assessing Officer followed this approach, much of the issues would have been resolved as the assessee would have been allowed an opportunity to explain the situation so that the Assessing Officer could arrive at a considered judgment. Considering the entirety of circumstances, we are inclined to uphold the plea of the assessee to restore the matter back to the file of the Assessing Officer for adjudication afresh. Needless to mention, the burden shall be on the assessee to lead evidence and justification for the claim of impugned loss claimed in the export o....