2011 (4) TMI 797

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....der dated 5-3-2008, passed by the Income-tax Appellate Tribunal Delhi Bench 'I', New Delhi (in short "the Tribunal") in ITA No. 3812/Delhi/2005, relating to the assessment year 2000-01. 3. The appeal was admitted by this Court for determination of the following substantial question of law: "Whether on the facts and in the circumstances of the case, the Hon'ble ITAT was right in law in restoring back the matter to the file of Assessing Officer with the direction that assessment will be framed de novo after giving the reasonable opportunity of hearing to the assessee as per provisions of law, without going into the merits of the additions made in the assessment order and even though the assessee failed to comply with the law as the assessee....

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.... of the assessee, vide order dated 25-7-2005. 5. Both the sides felt aggrieved by the order of the CIT(A) and accordingly, each of them preferred separate appeals before the Tribunal. The Tribunal, vide the order under appeal, after scrutinizing the matter, observed as under : "We have heard both the parties and without going into the merits, whether the disallowance sustained or deleted by the CIT(A) is correct or not, one fact is clear that assessee did not produce books of account. According to section 142(1), the Assessing Officer has power to require the assessee to produce or caused to be produced such accounts or documents as he required and if the same is not produced, the Assessing Officer is authorized to make best judgment asse....

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....oks of account and frame a fresh assessment especially when the Assessing Officer had provided adequate opportunity but the assessee had failed to produce the record. Learned counsel, in support of his submission relied upon a judgment of this Court in CIT v. SAS Educational Society [2009] 319 ITR 65. Controverting the aforesaid submission, learned counsel for the assessee submitted that the accounts of the assessee were audited and assessee had filed audit report as required under section 44AB of the Act, along with the return of income. According to the learned counsel, once the accounts were maintained and audit report had been filed, it could not be said that the assessee was negligent in not producing the books of account before the As....