TaxTMI 
TaxTMI 
2025 (9) TMI 741
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....e from 7% (AO) to 5%. Revenue went in second appeal before ITAT. (c) Through order dated 03.07.2014, the ITAT upheld the action of the Ld. CIT(A), dismissing the Revenue's appeal. (d) The Ld. CIT(A) passed an order dated 26.11.2011 u/s 263 of the Act and held the order of AO dated 30.07.2010 as being erroneous and prejudicial to the interests of revenue as the loan creditors had not been allegedly verified. The assessee went in appeal before the ITAT against this order. (e) Vide order dated 28.05.2015, the ITAT dismissed the assesee's appeal, even though it was directed to consider the benefit of telescoping regarding the loan creditors and overall turnover. (f) In the meantime, the Ld. AO passed an order u/s 143(3) r.w.s. 263 of the Act dated 06.03.2013 and after verification, etc. added Rs. 3,44,45,808/- u/s 68 of the Act. (g) The Ld. AO passed an order dated 25.02.2016 u/s 143(3) r.w.s. 254 of the Act to give effect to the ITAT's order dated 28.05.2015 (passed for proceedings u/s 263 of the Act). Actually, this is the order forming basis for first appellate order dated 06.08.2018, which is the impugned order for the present appeal. Ho....
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....of Rs. 3,44,45,828/- on account of bogus creditors, which was not even added in the order u/s 143(3)/254. The addition was done in earlier order u/s 143(3)/263 dated 06.03.2013. 2. The Ld. CIT(A) has decided the issue which was not subject matter of the order matter of the impugned order. 3. Any other grounds taken at the time of hearing." 1.3 It is seen that through written submission the Ld. AR has vehemently opposed the admission of additional ground of appeal of the Revenue. In this regard, we would do well to be remind ourselves of the locus classicus on the subject being the case of National Thermal Power Company limited reported in 229 ITR 383 (SC). The relevant portion from the said order of the Hon'ble Apex Court may be extracted as under: "Under section 254, the Tribunal may after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. The power of the Tribunal in dealing with appeals is, thus, expressed in the widest possible terms. The purpose of the assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in accordance with law. If, ....
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....acts which are on record in the assessment proceedings there is no reason why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee. The Tribunal has, therefore, jurisdiction to examine a question of law which arises from the facts as found by the authorities below and having a bearing on the tax liability of the assessee. Proceedings remanded back to the Tribunal for consideration of the new grounds raised by the assessee on the merits." Since, the additional ground of appeal does not require any new fact to be brought on record for adjudication, it deserves to be held that the additional ground filed by the Revenue is admitted for adjudication. 2. Before us, two paper books have been filed, one filed by revenue and another filed by assessee. The Ld. DR argued that for the Ld. CIT(A), the impugned order was actually AO's order u/s 143(3) r.w.s. 254 of the Act dated 25.02.2016 and not AO's order dated 06.03.2013 (u/s 143(3) r.w.s. 263) of the Act. The Ld. DR took us through the paper book filed by the revenue and re-emphasized the chronology of events in....
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....o. CIT(A), Patna-2/10611/2015-16) Status/Deductor Category Resident Status Resident Nature of Business Others Section under which the order appealed against was passed 143(3) r.ws. 254 Date of Order under which the order appealed against was passed 25/02/2016 Income Assessed (In Rs.) 38967770 Tax/Penalty/Fine/Interest Demanded (in Rs.) 12821900 Date of Hearings(s) 26/03/2018 Present for the appellant Shri S.C. Sannigrahi, CA & AR of the appellant Present for the Department None" It is clear that the Ld. CIT(A) was seized of order dated 25.02.2016 only. In the said order of the Ld. AO, the following findings may be extracted as under: "The Assessee is a contractor and derives income from contract receipt and filed its return of income on 30.09.2009. The assessee has shown total taxable income of Rs. 17,60,784/. The case of the assessee was selected for scrutiny on compulsory basis under section 143(3) of the Income-tax, Act, 1961 and statutory notice u/s 143(2) & 142(1) of the Income-tax Act, 1961 have been issued accordingly. In this case, assessment was passed u/s 143(3) of the I.T. Act, 1961 on 30/0....