TaxTMI 
TaxTMI 
2026 (8) TMI 126
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.... 2. The Ld. CIT(A) had erred in setting aside the order of the assessment completed u/s.147 r.w.s 144B of the Income Tax Act, in contravention to the provisions of section 251(1)(a) of the Income Tax Act, 1961. 3. The Ld. CIT(A) failed to appreciate the fact that the assessment was not made u/s.144 of the Act and erroneously set aside the assessment to the AO for fresh assessment. 4. The Ld. CIT(A) ought to have call for a remand report from the AO on the additional information furnished by the assessee during appellate proceedings and decide the case on merits. 5. The appellant craves leave to add or delete or amend or substitute any ground of appeal before and/or at the time of hearing of appeal. 6. For these and other grounds that may be urged at the time of appeal hearing, it is prayed that all these above additions be restored." Also, the assessee firm is before us as a cross objector, wherein the assessee firm has supported the order passed by the CIT(A) on the following grounds of appeal: 1. "The learned Commissioner of Income Tax (Appeals) is justified in setting aside the assessment order passed in the case of the app....
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....t the CIT(A) taking cognizance of the aforesaid contentions of the assessee firm and being well conversant with the fact that the impugned order of assessment in the case of the assessee firm was passed under section 147 r.w.s 144B of the Act, set aside and restored the matter back to the file of the AO for making a fresh assessment for the reason that issue under dispute was not examined by him in the course of the assessment proceedings. For the sake of clarity, we deem it apposite to cull out the observations of the CIT(A), as under: "6.1. The grounds of appeal, statement of facts, assessment order u/s. 147 r.w.s. 144B of the Act and written submission of the appellant have been carefully considered. 6.2. On perusal of the assessment order, the AO clearly stated vide para no.3.3. in page no.5 that on examination of the submission made by the appellant on 28.02.2024, the finding of the AO is reproduced here under: "...it has been found that there is nothing to download as the content of the file is shown as "0" byte. Considering the facts and circumstances, a letter was issued to the assessee stating the fact of the case and it was asked to resubmit the....
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....eted the assessment u/s. 147 r.w.s. 144B of the Act dated 07.03.2024 by making addition of Rs. 5,51,62,151/- u/s. 40A(3) on the ground that the submission(s) filed by the appellant was not in legible documents or the contents shown as 0 byte. After considering the submission of the appellant and the assessment order u/s. 147 r.w.s. 144B of the Act, the case of the appellant is set aside and restored back to the file of the AO for making a fresh assessment since the issue under dispute was not examined by the AO. 6.5. After careful consideration of the assessment order, appellant submission, additional evidence and contentions of the appellant presented during this appeal proceedings were neither made available nor raised before the Assessing Officer during the course of assessment proceedings, the assessment in the present case is set aside and restored back to the file of AO for making a fresh assessment. Needless to say, the AO shall provide reasonable opportunity being heard to the appellant in accordance with the principles of the natural justice. It is also incumbent upon the appellant to provide all co-operation to the AO for disposal of case. 7. In the resu....
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....order so passed was in substance a best judgment assessment order passed under section 144 of the Act. Accordingly, it was submitted that as the assessment order passed by the AO was, in substance, a best judgment assessment order passed under section 144 of the Act, the CIT(A), taking cognizance of the facts in totality, had rightly set aside the matter to the file of the AO for making a fresh assessment. 10. We have given thoughtful consideration to the contentions advanced by the Learned Authorised Representatives of both parties in the backdrop of the orders of the authorities below. As is discernible from the record, it is a matter of fact that the AO in the present case before us had framed the assessment vide his order passed under section 147 r.w.s. 144B of the Act, dated 07/03/2024. Admittedly, the assessment order passed by the AO is not a best judgment assessment under section 144 of the Act which would have vested jurisdiction with the CIT(A) to exrcise the powers vested with him as per the "proviso" to section 251(1)(a) of the Act, wherein he could have validly set aside the assessment and referred the case back to the AO for making a fresh assessment. At this stage....