TaxTMI 
TaxTMI 
TaxTMI 
2021 (2) TMI 654
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....e also raised following additional ground of the present appeals: "On the facts and in the circumstances of the case and in law, Learned Assessing officer erred in making the addition and passing the impugned assessment order under section 153A r.w.s. 143(3) without reference to any incriminating material found and seized during the course of conduct of search." 3. Before us Ld. counsel for the assessee submitted that the additional ground, so raised are legal grounds and germane to the dispute regarding exercising of jurisdiction by the assessing officer hence needs adjudication at any stage in view of the judicial pronouncements. Further Ld. counsel for the assessee submitted that impugned assessments have been completed u/s 153A r.w.s. 143(3). Additions made by the AO relating to agricultural income on lease hold lands are without reference to any incriminating material found during the course of search conducted in the case of the assessee. The identical additional grounds have been allowed in one of the group case of the assessee in IT(SS)A No.126 to 128/Ind/2016 in case of Taj Grih Nirman Society vide order 08.01.2021. 4. On the other hand, Ld. CIT-DR relied upon the ord....
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....eady on record, there is no merit in the action of the ld. CIT(A) for declining to entertain the legal issue, even though raised for the first time before him. In the interest of justice and fair play, we restored this legal issue to the file of CIT(A) and direct him to decide the same as per law keeping in view various decisions discussed herein above." The tribunal allowed the contention of the assessee for raising the legal issue, but remanded the matter to the CIT(A) to consider the aforesaid legal issue. In this appeal the sole contention of the appellant before this court is that in place of remand the Tribunal itself ought to have adverted itself to the legal issue and remand in the matter was not required. While the learned counsel for revenue supported the remand order. In this case, as per the finding recorded by the Tribunal in para 10 of the order, we find that all the facts were before the Tribunal and the Tribunal in this para specifically have recorded this fact. When all the facts for deciding the legal issue were already on record, in the aforesaid circumstances, whether the Tribunal could have remanded the matter or ought to have decided the matter itself it....
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....Court in Remgosri Construction (P) Ltd. vs. Income Tax Officer (209) 308 ITR 290 (Mad), in which the Division Bench held in para 8 of the judgments which reads thus: "8.The Tribunal has not set aside the finding of the appellate authority and remitted the entire issue to the file of the AO. The Tribunal had merely contended itself by saying that neither the AO nor the appellate authority had examined the relevant details and that it is not clear whether the records were before the AO. But, it does not appear to be correct since there were materials before the AO as well as the appellate authority for them to draw the respective conclusions. Therefore, we remit the matter back to the Tribunal to decide the matter afresh as expeditiously as possible on the basis of the available materials." In the aforesaid both the judgments, it has been held that when the entire material is before the Tribunal, the Tribunal in place of remand ought to have decided the matter on its own merits. In this case a pure legal issue was before the Tribunal and the Tribunal itself has recorded that all the facts are already on record, then in the aforesaid circumstances the Tribunal itself ought to ha....
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....oss-objection filed by the assessee on the ground of limitation specially when it took the view that the dividend income was not taxable in India. Attention has also been invited to Rule 27 of the ITAT Rules, 1963. The said rule reads as under: 27. The respondent, though he may not have appealed, may support the order appealed against on any of the grounds decided against him. 16. Reference has also been made to the decision of the apex Court in National Thermal Power Co. Ltd. v. CIT in which their Lordships have observed that the power of the Tribunal in dealing with appeals is expressed in widest possible terms. The purpose of assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in accordance with law. If, for example, as a result of judicial decision given while the appeal is pending before the Tribunal, it is found that a non-taxable item is taxed or a permissible deduction is denied, there is no reason why the assessee should be prevented from raising that question before the Tribunal for the first time, so long as the relevant facts are on record in respect of the item. From the above position it is clear, that if ....
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....at the dividend income is not chargeable under the Act in view of the agreement, the question with regard to the grant of credit for the TDS in relation therewith, is rendered redundant." 7. In the light of the above judgments of the Hon'ble jurisdictional High Court additional ground raised by the assessee is admitted for adjudication. 8. Additional ground is qua the addition made without reference to any seized documents. Ld. Counsel for the assessee contended that the impugned addition deserves to be deleted on the sole ground that there is no reference to the seized material. The addition has been made purely on the basis of material already available with the revenue. Such conduct of the Assessing Officer is not justifiable and is contrary to the judicial pronouncements. 9. Before us, Ld. CIT-DR could not controvert the submission made by the assessee by bringing any contrary material on record. Ld. CIT-DR also fairly conceded that the issues are covered in favour of the assessee by the judicial pronouncements. This Tribunal after following binding precedents in IT(SS)ANo.126 to 128/Ind/2016 held as under: "15. We have heard rival contention and perused the records p....