TaxTMI 
TaxTMI 
2015 (1) TMI 111
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....setting aside the assessment framed by the respondent for adhering to the prescriptions of the section 144C of the Act in spite of the non consideration of the arguments of both sides on the plea for admission of the additional grounds of appeal filed which proved perversity in the order passed by them? T.C.(A)No.875 of 2014: (i) Whether the Appellate Tribunal is correct in law in not entertaining the plea for recall of the original order passed within the scope of section 254(2) of the Act in spite of the mistake apparent from the record/order in not adjudicating the plea relating to the admission of additional grounds of appeal for expanding the scope of the appeal before them? (ii) Whether the Appellate Tribunal is correct in law in setting aside the assessment framed by the respondent which assessment order was framed without adhering to the prescriptions of section 144C of the Act, thereby proving and establishing the lapse committed was fatal and not curable? (iii)Whether the Appellate Tribunal was correct in law in expanding the scope of the appeal of the Revenue before them for considering and for passing the order setting aside the assessment framed by the respondent f....
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....f Section 144C(1) of the Income Tax Act and since the Assessing Officer has not passed the assessment order on the basis of the draft assessment order, the proceedings under Section 143(3) passed by the Assessing Officer dated 30.12.2010 was bad. 5. The Commissioner of Income Tax (Appeals), by order dated 30.08.2011, set aside the order of the Assessing Officer in entirety holding as follows: "6. As per the provisions of section 144 C, the Assessing Officer shall "notwithstanding anything to the contrary contained in this Act, in the first instance, forward a draft of the proposed order of assessment order (hereafter in this section referred to as the draft order) to the eligible assessee if he proposes to make, on or after the first day of October, 2009 in variation in the income or loss returned which is prejudicial to the interest of such assessee, the other sub-sections of section 144 C mention about the further procedure of completion of assessment and the reference to the Dispute Resolution Panel. As seen from the assessment order, it was passed on 30.12.2010 without giving a draft of the proposed order of assessment to the assessee, since there was a variation in the incom....
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....ue is re-produced below: "2. The learned Commissioner of Income Tax (Appeals) erred in cancelling the assessment, since the provisions of sec.144C was not followed. 3. The learned Commissioner of Income Tax (Appeals) ought to have observed that non issue of draft order u/s. 144C of the Act was on a procedural irregularity. On a plain reading of the said grounds of appeal it is crystal clear that the revenue has put up a different case without explaining bona fide reasons for belated change of their stand and on the contrary revenue relied on two decisions to press their plea for adjudication of the revised grounds of appeal so as to get another round of proceedings for the Assessing Officer. 8. In effect, when the appeal was originally filed, the objection of the Department was that the Commissioner of Income Tax (Appeals), while passing the order dated 30.8.2011 ought not to have deleted the entire addition on the premise that the procedure prescribed under Section 144C was not followed. It is the contention of the appellant/assessee that the grounds of appeal by the Department is that the jurisdiction of the Commissioner of Income Tax (Appeals) to set aside the assessment ord....
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....ribunal chose to rectify the order by passing a revised order on 25.7.2014, which reads as follows: "5. We have heard both the sides and perused the materials on record. It appears that the Bench had misunderstood the submissions and gesture of the Ld. A.R at the time of hearing the appeal and had therefore observed in the order that the Ld. A.R had conceded for remitting the case back to the file of Ld. Assessing Officer for fresh hearing. Therefore paras-4 & 5 of the order of the Tribunal in ITA No.1865/Mds./2011 is accordingly modified and shall be henceforth read as follows:- "Para - 4 Ld. D.R taking cue from the observations of the Bench magnanimously conceded for remitting the case back to the file of the Ld. Assessing Officer for hearing the case afresh. Ld. A.R. on the other hand, stoutly opposed for remitting back the matter and relied on the order of Ld. CIT(A). Para - 5 Considering the facts and circumstances of the case, we hereby remit back the matter to the file of Ld. Assessing Officer for denovo consideration (since the Ld. Assessing Officer had not followed the provisions of Sec.144C of the Act). We also make it clear that the assessee shall co-operate with the ....