TaxTMI 
TaxTMI 
2012 (7) TMI 146
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....ere restored to the file of the AO for decision afresh; and whereby the CIT(A) directed the AO to deal with the issue regarding claim of higher rate of depreciation on the building allegedly forming the part of plant and machinery in accordance with the directions of the ITAT. The respective appeals filed by the revenue against the aforesaid order dated 29.04.2004 were dismissed by the ITAT by a common order dated 20.02.2007. First three of the present appeals by the revenue (ITA Nos. 139/2007, 35/2008, 31/2008) arise out of this common order dated 20.02.2007. The revenue also made the respective rectification applications under section 154 of the Act, 1961 before the CIT(A) who proceeded to reject the same by the common order dated 12.08.2004. The appeals filed by the revenue against this order dated 12.08.2004 were also dismissed by the ITAT by another order of the even date i.e., 20.02.2007. Next three appeals by the revenue (ITA Nos. 117/2008, 70/2008, 142/2008) arise out of this other order dated 20.02.2007. 3. The sum and substance of the matter remains that in the respective orders dated 20.02.2007. the ITAT found the CIT(A) perfectly justified in issuing directions to the ....
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....ded on 09.03.1994, and the ITAT considered the appeal of the assessee [ITA No.1234(JP)/94] in its similar nature order dated 23.11.2001, In this case, pertaining to assessment year 1981-82, the ITAT restored the three issues of same nature to the file of AO. In all these appeals, the issue regarding higher depreciation for the building remains the bone of contention. 8. It is borne out that the AO proceeded to decide all the remanded cases by the different orders of the even date i.e., 10.03.2003. The AO rejected the claim of higher depreciation essentially with the observations that the assessee did not file the requisite details for inspection despite granting of sufficient time. Against the aforesaid orders dated 10.03.2003, separate appeals were filed by the assessee on 22.04.2003 before the CIT(A). All these appeals were decided by separate but similar nature orders dated 29.04.2004. So far the issue at hands is concerned, regarding the claim of depreciation, the CIT(A) found that the AO failed to carry out the requirements of the orders as earlier passed by the ITAT on 22.11.2001 and 23.11.2001 restoring the issue to the file of AO. Thus, the CIT(A) did not approve of the or....
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....sed by the ITAT alongwith other appeals in its common order dated 20.02.2007. The relevant part of the said order dated 20.02.2007 reads as under:- "ITA NOS. 372 to 375/JU/2004 (A.Y.1979-80 to 1981-82 & 1992-93) 7. Following solitary effective common ground has been raised by the Revenue in these appeals: "On the facts and in the circumstances of the case, the ld. CIT(A) has erred in directing the Assessing Officer to decide the matter afresh after inspecting the building to ascertain whether it is forming part of plant ignoring the material and other facts brought on record by the Assessing Officer." 8. Briefly stated, the facts of this ground are that the assessee claimed building to be eligible for higher depreciation. In the absence of the assessee having assisted properly by furnishing necessary details, the Assessing Officer came to hold that higher rate of depreciation was not eligible. The ld. CIT(A) directed the Assessing Officer to decide the matter afresh after inspecting the building to ascertain whether or not it is forming part of plant. 9. Having heard the rival submissions and perused the relevant material on record, we find that the ld. CIT(A) has not decided ....
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....ive appeals filed on 22.04.2003. Similar nature substantial question of law as formulated in these three appeals relating to the assessment years 1979-80, 1980-81, and 1981-82 respectively reads as under:- "Whether the learned Commissioner had the power to send the matter back to the Assessing Officer to decide the matter afresh in view of the amendment made in section 251(1)(a) taking away such power, which was made with effect from 1.6.2001, while the appeal in the present case before the learned Commissioner was filed on 22.04.2003?" 13. The learned counsel for the appellant has questioned the orders impugned essentially with the submission that for the appeals filed on 22.04.2003 i.e., after amendment to section 251(1)(a), the CIT(A) was having no power or authority to remand the matter to the AO. Per contra, the learned counsel for the respondent assessee has referred to the decision of the Hon'ble Supreme Court in the case of S. Shanmugavel Nadar v. States of Tamil Nadu [2003] 263 ITR 658 to submit that the orders earlier passed by the AO merged in the orders passed by the ITAT on 22.11.2001 and 23.11.2001. According to the learned counsel, the AO was, thereafter, duty boun....
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....s, it is, at once, clear that the CIT(A) in his impugned orders dated 29.04.2004 has not passed an order as if he was setting aside the order of assessment and referring the matter back to the AO for making fresh assessment in accordance with his directions. The fact of the matter had been that the order as passed by the AO earlier had already been subjected to appeal before the CIT(A) and then before the ITAT. As noticed, the ITAT in its orders dated 22.11.2001 and 23.11.2001 restored the question of claim of higher depreciation to the file of AO for decision afresh after inspection of the building. In the orders dated 29.04.2004, the CIT(A) found that such directions of ITAT had not been complied with. The directions of ITAT were in any case required to be complied with by the AO. The CIT(A), in fact, had done nothing more than issuing directions for implementation of the order of the ITAT. In this position, when the CIT(A) was hearing the appeal against an order of assessment passed after the directions of ITAT, his power to annul the assessment order if found contrary to the ITAT's directions and directing the AO to carry out the requirements of the order of ITAT cannot be deni....
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....of what has been discussed and held hereinabove, the issues raised in other three appeals (ITA Nos. 117/2008, 70/2008 and 142/2008) are rendered rather academic. There being no illegality or infirmity in the principal order dated 29.04.2004, the CIT(A) was justified in rejecting the rectification applications by the common order dated 12.08.2004; and the ITAT was also justified in dismissing the appeals filed by the revenue by the other common order dated 20.02.2007. The ITAT, in fact, decided four appeals together, three of them relating to the present appeals and another one relating to the assessment year 1992-93 with a short common order that is reproduced in extenso as under:- "This is a bunch of four appeals, which have been filed by the Revenue in relation to Assessment Years 1979-80, 1980-81, 1981-82 and 1992-93. For three assessment years, viz., 1979-80 to 1981-82, there is a common appellate order, which is dated 12.08.2004. For A.Y.1992-93, there is separate appellate order dated 04.08.2004. In all these appeals, however, exactly identical issue is involved. Therefore, for the sake of convenience and brevity, we are deciding them all by a common order. 2. The relevant ....