2017 (12) TMI 367

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....nst the order passed by the Income Tax Appellate Tribunal in I.T.A.No.528/Mds/2016 dated 06.02.2017, by framing the following substantial questions of law: (i) Whether the Tribunal was right in remitting the issue to the file of the Assessing Officer to re-examine the donation made u /s 35AC even though the President of the eligible Trust has not received such donation and informed that police complaint has been lodged for defrauding the Trust name by unknown persons in connivance with the private bank officials in Kolkata ? (ii) Whether the Tribunal was right in remitting the issue of donation made u/s.35AC back to the file of the Assessing Officer without considering the fact that the assessee has copy of certificate in ....

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....that the bank account with Kotak Mahindra Bank has been fraudulently opened by unknown person with the help of bank officials and the money was withdrawn and that they have not received donation as claimed by the assessee. The said Trust also claimed that a criminal complaint has been lodged with the Kolkata police that their registered office is only in Indore and they have no other branches. The assessee was confronted with this information and was called upon to prove that the fund is utilised for the intended purpose. 4.On the above contention, the Assessing Officer completed the assessment by order dated 25.03.2013. Two issues arise for consideration, namely with regard to the donation which has been given by the assessee and the sa....

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....t issue is just and proper. However, we do not approve the rider attached by the Tribunal in paragraph 9 of its order while remitting the issue to the Assessing Officer. If, according to the Tribunal, the Assessing Officer has to conduct a similar exercise as that was directed to be conducted in M/s.Mangal Tech Park Pvt. Ltd. (supra), it should have been an open remand, but not a qualified remand. Therefore, we are inclined to interfere with that portion of the direction issued by the Tribunal in paragraph 9 and declare that the first issue shall be remitted back to the Assessing Officer, who shall re-examine the matter independently and afresh, without being influenced by the observations made by him in the assessment order or the observat....