TaxTMI 
TaxTMI 
2021 (10) TMI 1495
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....fore the Tribunal and raised the issue with regard to taxability of Rs.4,88,75,000/- on the basis of From No.26AS. On this issue Tribunal observed as follows:- "7. We have heard the rival submissions, perused the materials available on record and gone through the orders of the authorities below. Admittedly in this case, the CIT(A) determined the sale consideration on the basis of Form 26AS without seeing the actual sale deed entered by the assessee with concerned parties. In our opinion, sale consideration cannot be determined only on the basis of Form 26AS. The provisions of s.2(47)(v) can be applied only if there is a written contract coupled with the transfer of possession in terms of s.53A of the Transfer of Property Act. In En....
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.... Tribunal dated 16.4.2021. The ld.AO was of the opinion that the disputed issue was remitted back to him to do fresh assessment. As such the Ld.AR seeks clarification on the above findings of the Tribunal. 3. The DR submitted that there is no mistake apparent from the record which requires any clarification on the issue raised by the assessee before the Tribunal. 4. We have heard both the parties and perused the records. Admittedly, the Tribunal on earlier occasion categorically held that the assessment framed by AO on the basis of Form 26AS was set aside. Now, the contention of the AR is that the AO is not understood the above order of the Tribunal and passed fresh order though there was no such direction by the Tribunal. In this cas....
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....rmer, the proceedings cannot be generally revived, whereas in the latter, they can be revived if there are clear directions to that effect; they are similar in the sense that "both wipe out the original orders" see the judgment in the case of Seghu Buchiah Setty's case (supra) at page 544 (SC). Section 251(1)(a) of the Income-tax Act, 1961 which is in pari-materia with section 31(3)(a) and 31(3)(b) of the Income tax Act, 1922 confers upon the first appellate authority the power to annul the assessment as well as the power to set aside the assessment. However, the power to set aside the assessment is circumscribed by the condition that in such a case he should refer the case back to the ITO for making a fresh assessment in accordanc....
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....just as in the case of annulment." 9. In view of the above discussion, we are of the opinion that Tribunal has set aside the assessment means that it has annulled the assessment, since it has not given any direction to re-do the assessment. This view of ours is supported by the judgment of the Hon'ble Calcutta High Court in the case of Fu Sheen Tannery, 264 ITR 456, wherein it was held that : "it was clear that the appellate authority was conscious of the admission of the assessing authority that if the matter was remanded for fresh assessment it would require considerable time to explore, investigate, enquire to ascertain the actual position and, thus, decided to set aside the order of assessment without giving any direction fo....