TaxTMI 
TaxTMI 
2020 (6) TMI 648
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....961 [the Act] dated 6.4.2017. 2. ITA No.1455/Bang/2018 is also an appeal by the assessee against the order dated 28.02.2018 of the CIT(Appeals)-4, Bangalore relating to assessment year 2009-10 which arises out of an order passed by the AO u/s. 154 of the Income-tax Act, 1961 [the Act] dated 28.4.2017. 3. The facts and circumstances under which these appeals arise for consideration are that the assessee is a partnership firm. The business of assessee was acquiring land and carrying out construction of commercial complexes, shopping malls, residential apartments, etc. For the AY 2009- 10, the assessee filed a return of income in response to notice u/s. 142(1) dated 17.3.2010 declaring total income of Rs. 3,42,45,991. The assessee filed ....
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....6,226 Total Tax Payable 43,33,743 Add: Interest 234A 2,60,025 Interest 234B 5,20,050 Interest 234C 1,60,348 9,40,423 Total Tax and Interest payable 52,74,166 Less: Tax paid 1,00,00,950 Balance refundable 47,26,784 Add: Interest u/s. 24A 13,86,268 Total tax and interest refundable 61,13,052 Rounded off u/s. 288B 61,13,050 5. The AO thereafter passed an order u/s. 154 of the Act dated 6.4.2017 in and by which he observed that as per the CBDT Instruction No.1725 dated 22.8.2016 whereby the CBDT has laid down that if an assessment is set aside for being done afresh, the demand relating to th....
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....'s order dated 14.3.2013. The reason given for passing this order was that the demand as determined in the order dated 6.4.2017 was incorrect and hence was being rectified by order dated 28.4.2017. 8. Aggrieved by the two orders passed u/s. 154 of the Act dated 6.4.2017 and 28.4.2017, the assessee filed two appeals before the CIT(Appeals). The CIT(A) dismissed both the appeals holding that the order of AO was legally and factually correct. Aggrieved by the aforesaid orders, the assessee has preferred the present appeals before the Tribunal. 9. We have heard the rival submissions. In both the impugned orders passed u/s. 154 of the Act, the revenue has relied on the CBDT Circular No.1725 dated 22.8.2016 of the CBDT which reads as follow....
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....uction would show that it is only applicable to order giving effect to the order of the first appellate authority viz., the CIT(Appeals). By virtue of amendment to the provisions of section 251 of the Act w.e.f. 1.6.2001, the first appellate authority does not have any power to set aside an assessment or issue for consideration by the AO. Hence, as rightly contended by the assessee, the aforesaid Instruction cannot be the basis for passing the impugned orders. 11. Secondly, the Tribunal vide order dated 28.3.2016 in ITA No.631/Bang/2013 has held that the assessment order framed by the ITO is not valid and that the assessment has to be framed de novo by a competent Officer either ACIT/DCIT. By virtue of this order of Tribunal, the order o....