TaxTMI 
TaxTMI 
TaxTMI 
2021 (3) TMI 1490
X X X X Extracts X X X X
X X X X Extracts X X X X
....ily remanding the files to the Respondent without adjudicating on the preliminary issues pertaining to the jurisdiction of the Assessing Officer raised by the Appellant? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in summarily remanding the files of the Appellant to the Respondent instead of the Commissioner of Income Tax (Appeals)- 5, Chennai without considering the fact that the Appellant was denied a reasonable opportunity of being heard before the Commissioner of Income Tax (Appeals)? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in failing to consider that the impugned order u/s. 143(3) r.w.s. 147 of the Income Tax Act, 1961 passed by the Respondent was ex-facie unlawful as the same was passed without disposing the objections of the Appellant by means of a 'speaking order'? 4. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in failing to consider that the impugned re-assessment proceedings initiated by the Respondent is bad in law as the notice u/s. 148 of the Income Tax Act, 1961 was issued when sufficient....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nhaiyalal & Sons (HUF) Vs. ITO in ITA.No.1849/Chny/2018 and remanded the matter back to the file of the Assessing Officer for reconsideration. 7. In several other matters, identical orders were passed by the Tribunal remanding the matter back to the Assessing Officer. This Court has dealt with an identical issue in the case of Commissioner of Income Tax vs Manish D.Jain (HUF) [(2020) 122 taxmann.com 180 (Madras)]. In the said decision, this Court faulted the Tribunal for remanding the matter back by assigning the following reasons: "24. Bearing the principles laid down in the decision of the Hon'ble Supreme Court in the case of NRA Iron & Steel Private Ltd., in mind, if we examine the order passed by the Assessing Officer, we find that a detailed enquiry had been conducted by the Assessing Officer after affording an opportunity to the assessee. The assessee availed the opportunity through written submissions. The assessee was represented by an authorized representative and thereafter a finding had been rendered. The said finding was tested for its correctness by the CIT(A), who approved the same by order dated 07.8.2018. 25. We refer to the followi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....shares of M/s.Dhanlabh Merchandise Limited is itself a sham transaction for the following reasons: 1. Based on the details filed by the AR of the assessee and the address was provided the assessee the communication sent by this office to M/s.Excellent Batters Private Limited. 2. The postal remarks is 'not known' only. The postal authorities did not mention that the person left or something else. The word 'not known' means that the address itself bogus or incorrect one. 3. Accordingly, it is established that there is no such person in that address having name M/s.Excellent Batters Private Limited. 4. It is onus on the part of the assessee to prove the genuineness of the transaction. 5. It is also noticed that the documentary evidence filed by the assessee towards payment made for purchase of shares also not related to this transaction. 6. In the absence of the distinctive nos., in the sale bill dated 25.1.2010 of M/s.Excellent Batters Pvt. Ltd., and hence, it is not known that to whom the shares were originally allotted and how the same was subsequently transferred to the assessee for that there is no doc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....actory, the same are hereby held as 'unexplained cash credits' in the books of the assessee and accordingly added to the total income of the assessee in accordance with the provisions of Section 68 of the IT Act, 1961 and assessed under the head 'income from other sources' Penalty proceedings under Section 271(1)(c) read with Explanation 1 thereto are separately initiated for furnishing the inaccurate particulars of income with respect to the claim of capital gain made in the light of the findings made in the preceding paragraphs. ...... 7.3.......However, in the present appeal, the appellant purchased the shares of M/s.Bakra Pratisthan Limited in off market. During the course of the hearing on 24.7.2018, the AR admitted that the assessee purchased the shares of M/s.Dhanlab Merchandise Limited in off market. ..... 7.4. These shares were purchased through off market and not through Stock Exchange. The notice under Section 133(6) dated 28.9.2017 sent by the Assessing Officer to M/s.Excellent Barter Private Limited from which the assessee had purchased the shares of M/s.Dhanlab Merchandise Limited was returned unserved with ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....be exercised on judicial principles. 28. Further, in the decisions in the cases of (i) United Commercial Bank Vs. CIT [reported in (1982) 137 ITR 434 (Calcutta)] (ii) Darjeeling Dooars Plantations Vs. CIT [reported in (1988) 174 ITR 37 (Calcutta)] and (iii) Siemens India Ltd. Vs. CIT [reported in (1997) 226 ITR 801 (Bombay)], it was held that where all the evidence had been produced and the CIT(A), after full investigation of the evidence and examination of the accounts, had given a definite finding on the question in issue, the Tribunal's order of remand was held to be invalid. 29. Further, in the recent decision of the Hon'ble Division Bench of this Court in the case of Tharakumari Vs. ITO [TCA.No.128 of 2019 dated 11.2.2019], the appeal filed by the assessee in a case relating to penny stock was dismissed after noting the factual findings rendered by the Assessing Officer, the CIT(A) and the Tribunal. Thus, for all the above reasons, we hold that the order passed by the Tribunal calls for interference. 30. In the result, the above tax case appeal is allowed, the impugned order passed by the Tribunal is set as....