1984 (2) TMI 117

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....e need of more enquiry in the matter on an issue raised in appeal and, therefore, he passed an order of remand directing the ITO to make some enquiry and submit to him his finding on the matter which may enable him to dispose of the appeal. There can be, in law an appeal filed against the order passed by the CIT(A) under s. 250, but there cannot be an appeal filed against the exercise of the powers or the mode of exercise of powers followed by the CIT(A). Revenue has not appreciated the distinction properly between the order passed under s. 250 and the powers, which he may exercise to dispose of an appeal. In this connection, he referred to a decision of the Allahabad High Court in the case of Girdher Javer & Co. vs. CIT. (1953) 24 ITR 540 ....

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....s approved by the IAC. In appeal, before the CIT(A), preferred by the assessee, he reiterated the plea that the stock shown in the three Bahis did not belong to the firm, but reflected the stocks of the sister concern. It was further submitted that the impounded Bahis continued to be in the custody of the IT Department and the assessee was, therefore, handicapped for this reason in the very beginning of the proceedings to account for the excess stock. The CIT(A), therefore, remanded the case to the ITO to verify the claim of the assessee within one month from the receipt of this order. 3. Revenue has objected to this order of remand on the ground that the CIT (A) has admitted evidence in violation of IT Rule 46A regarding the admission o....

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....e ITO during the assessment proceedings. If it was the question of examination of the three Bahis, this also could not be considered as new evidence, because the ITO had largely relied upon these Bahis to work out the closing stock of the assessee-firm. The Bahis impounded before the assessment proceedings continue to be in the possession of the IT Department. How could, the ITO, while keeping the Bahis in his possession, raise an objection that any new evidence, which had not been looked at by the ITO, had been produced. Books of account are not impounded and seized for the mere fun of keeping them, but for the purpose of utilising them for making assessment. Even if the ITO had not looked at these account books, as he had done in this cas....