V. V. Ravi., Bangalore v. Asst. Commissioner of Income tax, Circle1, Belgaum

CO 58/PAN/2013 | 2008-2009
Pronouncement Date: 19-11-2014 | Result: Allowed

Appeal Details

RSA Number 5824123 RSA 2013
Assessee PAN ADHPV8798G
Bench Panaji
Appeal Number CO 58/PAN/2013
Duration Of Justice 11 month(s) 10 day(s)
Appellant V. V. Ravi., Bangalore
Respondent Asst. Commissioner of Income tax, Circle1, Belgaum
Appeal Type Cross Objection
Pronouncement Date 19-11-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted Not Allotted
Tribunal Order Date 19-11-2014
Date Of Final Hearing 30-09-2014
Next Hearing Date 30-09-2014
Assessment Year 2008-2009
Appeal Filed On 09-12-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH PANAJI BEFORE SHRI P. K. BANSAL HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA HONBLE JUDICIAL MEMBER ITA NO S .305 & 306/PNJ/2013 (ASSESSMENT YEAR S 2007 - 08 & 2008 - 09) THE ASSISTANT COMMISSIONER OF INCOME - TAX CENTRAL CIRCLE - 1 BELGAUM. (APPELLANT) VS. S RI V V RAV I PROP: M/S VIVERA MINERALS NO.491/A SRINIVAS NI LAYA JAIN COLONY DAM ROAD OPP: RELIANCE PETROL PUMP HOSPET PAN: ADHPV8798G (RESPONDENT) C.O. NOS. 5 7 & 58 /PNJ/2013 (ARISING OUT OF ITA NO S .305 &306/PNJ/2013) (ASSESSMENT YEAR S 2007 - 08 & 2008 - 09 ) SRI V V RAV I PROP: M/S VIVERA MINERALS NO.491/A SRINIVAS NILAYA JAIN COLONY DAM ROAD OPP: RELIANCE PETROL PUMP HOSPET PAN: ADHPV8798G (OBJECTOR ) VS. THE ASSISTANT COMMISSIONER OF INCOME - TAX CENTRAL CIRCLE - 1 BELGAUM (RESPONDENT) APPELLANT BY : NISHANT K. LD. DR RESPONDENT BY : NONE (WRITTEN SUBMISSION) DATE OF HEARING : 3 0 /09 /2014 DATE OF PRONOUNCEMENT : 19 /11/2014 O R D E R PER: D.T. GARASIA(JM) BOTH THE APPEALS HAVE BEEN FILED BY THE DEPARTMENT AG A INST THE ORDER OF CIT(A) - BANGLORE DATED 15 TH JULY 2013 FOR THE A.YS. 2007 - 08 & 2008 - 09. T HE CROSS OBJECTIONS HAVE BEEN FILED BY THE ASSESSEE. 2 . ITA NOS.305&306/PNJ/2013 (A.Y.2007 - 08 & 2008 - 09) C.O NOS. 57 &58 /PNJ/2013 2. THE FOLLOWING GROUN DS ARE RAISED BY THE DEPARTMENT EXCEPT FOR THE CHANGE OF THE FIGURE IN ITA NO.305/PNJ/2013 & ITA NO.306/PNJ/206. G ROUND NO. 1 WHETHER THE LEARNED CIT(A) IS JUSTIFI ED IN DELETING AN AMOUNT OF RS. 1 72 65 300/ - ADDED BY THE ASSESSING OFFICER FOR THE A.Y.2007 - 08 TOWARDS UNEXPLAINED INVESTMENT IN RESPECT OF UNACCOUNTED PURCHASES MADE BY THE ASSESSEE. GROUND NO.2 WHETHER T HE LEARNED CIT(A) IS JUSTIFIED IN DELETING AN AMOUNT OF RS.9 06 428/ - ADDED BY THE ASSESSING OFFICER FOR THE A.Y.2007 - 08 TOWARDS PROFIT ELEMENT ON UNACCOUNTED PURCHASES. 3. THE SHORT FACTS OF THE CASE THAT THE COMMISSIONER OF INCOME TAX BANGALORE HAS A LLOWED THE APPEAL OF THE ASSESSEE AND IT WAS HELD THAT IT IS CLEAR THEREFORE THAT THE APPELLANTS NAME WAS US ED BY SRI MANOJ KUMAR JAIN MEREL Y TO GIVE A SOURCE TO THE SALE OF IRON ORE MADE BY HIM. AS SUCH THE TRANSACTIONS SHOWN IN THE NAME OF APPELLANT CO NCERN ARE SIMPLY MAKE BELIEVE AND ON PAPER ONLY. THE INCOME DECLARED BY THE APPELLANT IS THEREFORE TREATED AS INCOME FROM OTHER SOURCES AND NOT INCOME FROM BUSINESS AS NO SUCH BUSINESS TRANSACTION WERE CARRIED OUT BY HIM. HOWEVER THE ADDITIONS MADE BY THE ASSESSEE OFFICER ON ACCOUNT OF INVESTMENT IN PURCHASES AND PROFIT THEREFROM ARE CONSIDERED UNNECESSARY AS NO SUCH TRANSACTION ACTUALLY TOOK PLACE AS HELD BY CIT (A) IN HIS ORDER REFERRED TO AS A AND B IN P ARA NO. 8 AND SUBSTANTIVE ADDITIONS AS CALLED F OR HAVE BEEN UPHELD IN THE HANDS OF SRI MANOJ KUMAR JAIN. THESE ADDITIONS ARE DELETED IN HANDS OF ASSESSEE AND INCOME ORIGI NALLY DECLARED BY THE ASSESSEE IS ASSESSED AS INCOME FROM OTHER SOURCES. WHILE DECIDING SO THE HONBLE CIT(A) - VI BANGALORE HAS NOT A DJUDICATED ON THE GROUND S OF APPEAL FILED ON 20.5. 2013 28.6 .2013 AND 1.7.2013. HENCE HIS CROSS OBJECTION IS FILED TO ADJUDICATE UPON THE GROUNDS OF APPEAL RAISED BEFORE HON BLE CIT(A) - VI BANGAL ORE. 4. DURING THE COURSE OF HEARING THE ASSESSEE DID NOT REMAIN PRESENT BUT FILED THE WRITTEN SUBMISSION WHICH READ AS UNDER: 3 . ITA NOS.305&306/PNJ/2013 (A.Y.2007 - 08 & 2008 - 09) C.O NOS. 57 &58 /PNJ/2013 IN FURTHERANCE TO THE GROUNDS OF CROSS OBJECTION FILED ALONG WITH FORM 36A HEREWITH WE ARE SUBMITTING DETAILED WRITTEN SUBMISSION/ARGU MENT ON EACH OF THE GROUNDS OF CROSS OBJECTION. 1. G ROUND NO: 1 THE HONBLE CIT GULBARGA ERRED IN TRANSFERRING THE CASE TO ASSISTANT COMMISSIONER OF INCOME TAX (ACIT) CENTRAL CIRCLE - I BELGAUM BY ISSUING A NOTICE U/S 127(1) ON 06.02.2009 WITHOUT APPENDING ANY RELEVA NT MATERIAL. THUS PRINCIPLE OF N ATURAL JUSTICE IS VIOLATED. THEREFORE THE ORDER TRANSFERRING THE CASE OF THE PETITIONER IS TO BE DECLARED NULLITY. HERE WITH WE ARE ENCLOSING THE HONBLE KARNATAKA HIGH COURT JUDGMENT IN CASE OF SPAN DESI GN & DEVELO PMENT PVT. LTD. VS. CIT BANGALORE - I II 215 TAXMAN 559; WHEREIN IT WAS HELD THAT IF THE NOTICE U/S 127(1) WAS NOT APPENDED WITH ANY RELEVANT MATERIAL PARTICULARS AND IF THE ORDER IS PASSED FOR TRANSFERRING THE CASE WAS TO BE SQUASHED AND THE O RDER PASSED BY THE AUTHORITY IS TO BE DECLARED NULLITY. 2. GROUND NO: 2 THE AO ERRED IN ISSUING A NOTICE U/S 153C WITHOUT RECORDING A SATISFACTION REGARDING THE UNDISCLOSED INCOME OF THE APPELLANT BECAUSE THE APPELLANT HAS ALREADY FILED RETURN OF INCOME F OR SAID ASSESSMENT YEAR U/S 139(1) ON 03.08.2007; WHEREIN ENTIRE PURCHASE AND SALE WERE DECLARED AND ALSO COMMERCIAL SALES TAX RETURN WERE FILED I.E. VAT 100 FOR THE YEAR UNDER CONSIDERATION. HENCE THIS BEING THE FACTS; SO THE SATISFACTION ON THE PART OF THE AO IS ABSENT OF UNDISCLOSED INCOME FOR THE SAID ASSESSMENT YEAR. RELIANCE CAN BE PLACED ON THE HONBLE SUPREME COURT JUDGMENT IN CASE OF MANISH MAHE SHWARI 289 IT R 341 AND COPY OF THE RETURN FILED ALONG WITH FINANCIAL STATEMENTS. 3. GROUND NO. 3 THE A O ERRED IN PASSING THE ORDER U/S 144 R.W.S. 153C OF THE INCOME TAX ACT 1961 AFTER ACCEPTING OR TAKING ON RECORD THE RETURN OF INCOME FILED U/S 139(1). AS THE RETURN OF INCOME FILED IN RESPOND TO THE NOTICE U/S 153C WITHOUT ISSUING THE NOTICE U/S 143 (2) WITH IN THE STI PULATED PERIOD OF TIM E. HERE WITH WE ARE ENCLOSING THE JUDGMENT OF THE SUPREME COURT IN CASE OF BLUE MOON 322 IT)? 158 AND ALSO THE JUDGMENT OF ITAT CHENNAI TRI BUNAL IN I TA NO . 922/MDS/2011 HELD THAT IF THE BELATED RETURN HAS BEEN CONSIDE RED FOR FINALIZING THE ASSESSMENT THE AO WAS DUTY BOUND TO COMPLY 4 . ITA NOS.305&306/PNJ/2013 (A.Y.2007 - 08 & 2008 - 09) C.O NOS. 57 &58 /PNJ/2013 WITH THE REQUIREMENT OF ACT FOR ISSUING THE NOTICES.IN THE CASE REFERRED ABOVE THERE WAS A NOTICE ISSUED U/S 148 ON 28.02.2007 BUT THE RETURN WAS FILED ON 19.12.2007 WHICH WAS BEYOND THE DATE SPECIFIED IN THE NOTICE. SUCH RETURN WAS BELATED. ON THE BASIS OF THE SAID BELATED RETURN THE AO PASSED THE RETURN U/S 154 WITHOUT ISSUING THE NOTICE U/S 143(2). THE TRIBUNAL HELD THAT SUCH ASSESSMENT IS NOT VALID AND AFFIRM WITH THE ORDER OF CIT (A ). IN OUR CASE ALSO THE AO WHILE FRAMING THE ASSESSMENT CONSIDERED THE RETURN FILED U/S 139(1) ON THE BASIS OF THE STATEMENT GIVEN BY THE APPELLANT ON 30.10.2009 BEFORE THE AO THAT THE RETURN WERE FILED IN THE OFFICE OF THE ITO WARD 9(3) BANGALORE. THE AO CALLED UPON THE SAID RETURN FROM ITO WARD 9(3) RELYING ON THE SAID RETURN THE ORDER WAS PASSED U/S 144 R.W.S. 153C WITHOUT ISSUING THE NOTICE U/S 143(2). HENCE THE ASSESSMENT ORDER IS NULLITY. 4. GROUND NO: 4 IN COURSE OF SEARCH OF MANOJ KUMAR JAM THERE WAS A TRANSACTION FOUND IN THE BOOKS OF MANOJ KUMAR JAM THAT BELONGS TO THE APPELLANT .THERE WAS NO MATERIAL FOUND BELONGS TO THE APPELLANT. IN SUCH A SITUATION ONLY ON THE BASIS OF THE TRANSACTION IN THE THIRD PARTY ACCOUNT AO CANNOT ASSUME JURISDICTION U/S 1530 OF INCOME TAX ACT 1961. THE RELIANCE CAN BE PLACED ON THE ITAT BANGALORE BENCH JUDGMENT IN CASE OF F SRINIWAS NAIK 306 ITR 411. THE A.O ERRED IN PASSING THE ORDER U/S 144 R.W.S 1530 OF THE INCOME TAX ACT 1961 AS THE SEIZED MATERIAL DOES NOT BELONG TO THE PARTY; ONLY THE TRANSACTIONS ENTERED IN THE SEIZED DOCUMENTS BELONG TO THE APPELLANT. IN SUCH SITUATION THE A.O CANNOT ASSUME THE JURISDICTION U/S 153C OF THE INCOME TAX ACT IN VIEW OF THE DECISION OF T HE IT AT BENCH BANGALORE IN THE CASE OF P. SRINI WAS NAIK 306 ITR 411. 5. GROUND NO. 5 THE AO HELD THAT THE PURCHASE DECLARED IN THE RETURN OF INCOME FILED U/S 139(1) FOR THE RELEVANT ASSESSMENT YEAR AS UNACCOUNTED INVESTMENT ON THE BASIS OF SAID PURC HASES WERE NOT DECLARED TO SALES TAX AUTHORITY. SUCH ACTION OF THE AD WAS SUFFERED FROM SANCTION OF A LAW AND AGAINST THE FACT OF THE CASE. IN FACT SALE TAX RETURN WAS FILED BEFORE L.V.O 134 BANGALORE ON 23.03.2008 BEFORE THE DATE OF SEARCH I.E. 2503.2008 . AND ALSO THE APPELLANT IS REGISTERED UNDER THE KVAT ON 01.02.2006. 6. GROUND NO. 6 5 . ITA NOS.305&306/PNJ/2013 (A.Y.2007 - 08 & 2008 - 09) C.O NOS. 57 &58 /PNJ/2013 THE AO FACE TO ACCEPT THE PURCHASE AND SALE DECLARED BY THE APPELLANT IN THE INCOME TAX RETURN FILED U/S 139(1) WITHOUT ADDUCING REASONABLE GROUND IN THE ASSESSMENT ORDER . 7. GROUND NO. 7 IN THE ORDER PASSED U/S 144 R.WS. 1530 TAKEN THE ENTIRE PURC HASE AS UNACCOUNTED INVESTMENT THOUGH THE APPELLANT HAS NOT PAID FOR THE PURCHASES WHICH HAS BEEN SHOWN AS SUNDRY CREDITOR AS PAYABLE IN THE BALANCE SHEET AS ON 3 1 - 03 - 2007. 8.GROUND NO. 8 IN THE APPELLANT CASE THE JURISDICTION TO ASSESS THE APPELLANT INCOME FOR THE AY 2007 - 08 AND A 2008 - 09 IS LIES WITH CENTRAL CIRCLE BANGALORE NOT WITH THE CENTRAL CIRCLE BELGAUM AS THE APPELLANT WAS FILING THE RETURN OF INCOME EVERY Y EAR WITH RANGE - 9 OF BANGALORE. 9. GROUND NO. 9 IN THE ASSESSMENT ORDER THE AC REFERRED THE ILLEGALITY OF THE BUSINESS BUT THE AC FAILS TO NOTE THAT THE TENT OF ILLEGALITY OR WRONG DOING ASSOCIATED WITH THE INCOME OR SOURCE OF INCOME IS IMMATERIAL FOR TAXING THE INCOME OF ILLEGAL BUSINESS IN VIEW OF APEX COURT DECISION I N CASE OF CIT VS. KOTHARI 82 ITR 794 10. GROUND NO. 10 THE CIT (APPEALS) - VI BANGALORE AFTER HOLDING THAT TRANSACTIONS SHOWN IN THE APPELLANT CONCERN OR SIMPLY MAKE BELIEF AND ON PAPER ONLY AS SUCH NO TRANSACTION ACTUALLY TAKES PLACE AND TAKEN THE INCOME DECLARED IN THE RETURN AS INCOME FROM OTHER SOURCES. THIS IS AGAINST THE FACT HELD BY CIT (APPEAL) - VI BANGALORE. 5 . THE LEARNED DR HAS SUBMITTED BEFORE US THAT THE CIT(A) AS PER THE STATEMENT OF FACT FILED BY THE ASSE SSEE THE CIT(A) HAS NOT ADJUDICATED THIS GROUND OF APPEAL. MOREOVER THE CIT(A) HAS NOT CALLED FOR ANY REMAND REPORT FROM THE AO REGARDING ALL THE CROSS OB JECTIONS A NOTICE U/S. 127(1) ISSUED ON 6.2.2009 WITHOU T APPENDING ANY RELEVANT MATERIAL. SIMILARLY THE ASSES SEE HAS ALSO ISSUED NOTICE U/S. 153(C ) HENCE NO ASSESSMENT CAN BE MADE U/S. 144 R.W. S. 153C . MOREOVER GROUND NO.4 IS RELATING TO THE DELAY RETURN AND NO NOTICE WAS ISSUED U/S. 143(2) HENCE THE ORDER IS NULLITY. THEREFORE THE CIT(A) HAS TO VERIFY THE RECORDS AND THEREFORE HE WANT TIME TO FILE THE SAME. M OREOVER IF THE 6 . ITA NOS.305&306/PNJ/2013 (A.Y.2007 - 08 & 2008 - 09) C.O NOS. 57 &58 /PNJ/2013 HONBLE TRIBUNAL DEEMS FIT IT MAY BE RESTORE D TO THE CIT(A) TO DECIDE THE APPEAL AFTER CALLING REMAND REPORT FROM THE A.O. 6 . WE HAV E HEARD THE RIVAL CONTENTION OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE WE FIND THAT ASSESSEE HAS NOT BROUGHT OUT ANY RECORD FROM ASSESSING OFFICER REGARDING NOTICE ISS UED U/S. 127(1) AND THE SATISFACTION RECOR DED BEF ORE ISSUI NG THE NOTICE U/S.153C. THE ASSESSEE HAS RAISED THE GROUND S BEFORE CIT(A) THE CIT(A) HAS NOT DECIDED THE GROUNDS OF APPEAL AS PER THE STATEMENT OF FACT FILED BY THE ASSESSEE IN HIS CROSS OBJECTION . BEFORE THE TRIBUNAL T HE ASSESSEE DID NOT REMAIN PRESENT BUT FILED THE WRITTEN SUBMISSION. T HEREFORE IN A BSENCE OF ANY EVIDENCE WE ARE UNABLE TO DECIDE THIS ISSUE. THIS ISSUE IS LEGAL ISSUE AND IT GOES TO THE R OOT OF THE APPEAL. THE CIT(A) HAS NOT DECIDED THIS ISSUE THEREFORE AS PER DECISION OF HONBLE M.P. HIGH COURT IN CASE OF CIT VS. TOL LAR AM HASSOMAL 298 ITR 22(MP ) WHEREIN IT IS HELD AS UNDER: IN OUR CONSIDERED VIEW THEREFORE THE TRIBUNAL HAVING PERMITTED THE ASSESSEE TO RAISE FOUR ADDITIONAL GROUNDS TREATING THEM TO B E LEGAL GROUNDS IN APPEAL FOR THE FIRST TIME SHOULD HAVE SET ASIDE THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) AND REMANDED THE CASE TO THE COMMISSIONER OF INCOME - TAX (APPEALS) FOR DECIDING THE APPEAL BY THE COMMISSIONER OF INCOME - TAX (APPEA LS) AFRESH ON ALL THE ISSUES INCLUDING ON THOSE FOUR GROUNDS RAISED BY THE ASSESSEE IN THE APPEAL BEFORE THE TRIBUNAL RATHER THAN TO DECIDE THE SAME ON THE MERITS FOR THE FIRST TIME BY THEMSELVES AND SET ASIDE THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) AS ALSO THE ASSESSMENT ORDER. HAD THE CASE BEEN REMANDED BY THE TRIBUNAL THE COMMISSIONER OF INCOME - TAX (APPEALS) WOULD HAVE BEEN IN A POSITION TO EXAMINE THE ISSUE FOR THE FIRST TIME IN RELATION TO THOSE FOUR GROUNDS WHICH HE DID NOT DECIDE FOR WANT OF ANY ATTACK ON THOSE GROUNDS INITIALLY IN THE FIRST ROUND. IT CANNOT BE DIS PUTED THAT THE COMMISSIONER OF INCOME - TAX (APPEALS) HAD JURISDICTION TO EXAMINE THOSE FOUR GROUNDS HAD IT BEEN RAISED BEFORE HIM IN APPEA L EVEN IN THE FIRST ROUND. WE THUS CANNOT SUBSCRIBE TO THE APPROACH AND THE MANNER IN WHICH THE TRIBUNAL ALLOWED THE ASSESSEE TO RAISE ADDITIONAL GROUNDS IN APPEAL FOR THE FIRST TIME AND THEN DECIDING THE APPEAL ON THOSE GROUNDS BY NOT ONLY SETTING ASID E OF THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) BUT EVEN PROCEEDING TO ANNUL THE ORDER OF THE ASSESSING OFFICER ALSO. SUCH APPROACH IS NEITHER LEGAL NOR PROPER. IT ONLY EXHIBITS THE ANXIETY OF THE TRIBUNAL TO DECIDE THE APPEAL ON THE MERITS E VEN ON THOSE POINTS WHICH DID NOT ARISE FOR DECISION OUT OF THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS). IN OTHER WORDS INSTEAD OF CONCENTRATING ON THE ISSUES ALREADY DECIDED BY THE 7 . ITA NOS.305&306/PNJ/2013 (A.Y.2007 - 08 & 2008 - 09) C.O NOS. 57 &58 /PNJ/2013 COMMISSIONER OF INCOME - TAX (APPEALS) THE TRIBUNAL ONLY CONCEN TRATED ON THOSE GROUNDS WHICH HAD NOT BEEN TAKEN BEFORE THE COMMISSIONER OF INCOME - TAX (APPEALS) AND THEN ANSWERED THEM IN FAVOUR OF THE ASSESSEE BY COMPLETELY ANNULLING THE WHOLE ASSESS MENT. THERE WOULD HAVE BEEN NO PREJUDICE CAUSED TO EITHER PARTY IF THE CASE HAD BEEN REMANDED TO THE COMMISSIONER OF INCOME - TAX (APPEALS) ONCE THE PRAYER TO RAISE ADDITIONAL GROUNDS WAS ALLOWED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE. WHEN A LITIGANT HAS A RIGHT TO SEEK ADJUDICATION ON A PARTICULAR POINT FROM ONE MORE AUTHORITY (AS IN THIS CASE COMMISSIONER OF INCOME - TAX (APPEALS)) AND AGAIN ACQUIRE A RIGHT TO REITERATE THE CHALLENGE BEFORE THE HIGHER APPELLATE AUTHORITY (SUCH AS TRIBUNAL) IN CASE IF THE CHALLENGE IS DECIDED AGAINST BY THE FIRST APPELLATE AUTHORITY THEN IN SUCH EVENT THERE IS NO JUSTIFIABLE REASON AS TO WHY A LITIGANT IS DEPRIVED OF SUCH AN OPPORTUNITY. WE THEREFORE DO NOT AGREE TO SUCH APPROACH RESORTE D TO BY THE TRIBUNAL AND HENCE WE SET ASIDE THE IMPUGNED ORDER IN VIEW OF THE FOREGOING DISC USSION WE DO NOT CONSIDER IT NECESSARY TO EXAMINE ANY OTHER ISSUES I.E. THE QUESTIONS ALREADY FRAMED AND DECIDED BY THE TRIBUNAL THOUGH URGED BY LEARNED COUNSEL FOR THE REVENUE ON VARIOUS LEGAL GROUNDS WITH REFERENCE TO DECIDED CASES OF THE SUPREME C OURT AND THE HIGH COURTS BY CONTENDING THAT NONE OF THEM ARE LEGALLY SUSTAINABLE AND HENCE WE ANSWER ONLY ADDITIONAL QUESTION OF LAW FRAMED IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE (RESPON DENT). AS A RESULT THE APPEAL SUCCEEDS AND IS HEREBY A LLOWED. THE IMPUGNED ORDERS OF THE TRIBUNAL IS SET ASIDE SO ALSO THAT OF THE COMMISSIONER OF INCOME - TAX (APPEALS) WHICH WAS THE SUBJECT - MATTER OF APPEAL BEFORE THE TRIBUNAL IN AN APPEAL FILED BY THE ASSESSEE. INDEED THIS BEING A CONSEQUENCE OF THE IND ULGENCE GRANTED BY THE TRIBUNAL TO THE ASSESSEE IN PERMITTING THEM TO RAISE FOUR ADDITIONAL GROUNDS TO URGE THE SAME HAS TO BE GIVEN EFFECT TO. AS A CONSEQUENCE THE COMMISSIONER OF INCOME - TAX (APPEALS) IS NOW DIRECTED TO DECIDE THE APPEAL FILED BY THE RESPONDENT (ASSESSEE) AFRESH ON THE MERITS INCLUDING ON THE FOUR ADDITIONAL GROUNDS RAISED BY THE ASSESSEE. WE HOWEVER MAKE IT VERY CLEAR THAT THE COMMISSIONER OF INCOME - TAX (APPEALS) WOULD NOT TAKE INTO CONSIDERATION ANY OF THE FINDINGS AND THE OBSER VATIONS MADE BY THE TRIBUNAL ON ANY OF THE ISSUES RAISED BY THE ASSESSEE NOR THE COMMISSIONER OF INCOME - TAX (APPEALS) WILL BE INFLUENCED B Y ANY OF THEM. IN OTHER WORDS THE COMMISSIONER OF INCOME - TAX (APPEALS) WILL DECIDE THE APPEAL STRICTLY IN ACCORDA NCE WITH LAW ON THE MERITS AS IF THERE IS NO FINDING ON ANY OF THE ISSUES EVER RECORDED BY THE TRIBUNAL BECAUSE ONCE WE SET ASIDE THE ORDER OF THE TRIBUNAL THEN SUCH ORDER IS REGARDED AS BEING NOT IN EXISTENCE AND CANNOT BE LOOKED INTO FOR ANY PURPOSE NOR CAN BE RELIED ON OR REFERRED TO BY ANY AUTHORITY MUCH LESS AN AUTHORITY SUBORDINATE TO THE TRIBUNAL. NEEDLESS TO OBSERVE THE FOUR ADDITIONAL ISSUES URGED BY THE ASSESSEE WILL HAVE TO BE DECIDED BY THE COMMISSIONER OF INCOME - TAX (APPEALS) KEEPING IN VIEW THE LAW LAID DOWN BY THE SUPREME COURT AND THE HIGH COURTS IN SEVERAL CASES HOLDING THE FIELD IN THEIR RIGHT PERSPECTIVE. LET THIS BE DONE WITHIN SIX MONTHS BY THE COMMISSIONER OF INCOME - TAX (APPEALS) FROM THE DATE OF APPEARANCE. PARTIES TO APPEA R BEFORE THE COMMISSIONER OF INCOME - TAX (APPEALS) ON APRIL 3 2006. 8 . ITA NOS.305&306/PNJ/2013 (A.Y.2007 - 08 & 2008 - 09) C.O NOS. 57 &58 /PNJ/2013 THEREFORE WE RESPECTFULLY FOLLOWING THE SAME WE ARE OF THE VIEW THAT IN THE INST ANT CASE THE COMMISSIONER OF INCOME - TAX (APPEALS) H AS NOT DECIDED THIS LEGAL ISSUES . THE LEGAL ISSUES REQUIRED MATERIAL OR ADDITIONAL EVIDENCE HAS TO BE LOOKED INTO. THEREFORE WE ARE OF THE VIEW THAT CIT(A) IS DIRECTED TO CALL FOR THE REMAND REPORT FORM THE AO AND CIT(A) IS DIRECTED TO DECIDE THE APPEAL AFRESH. THEREFORE WE REVERSE THE FINDING OF CIT(A) AND RESTORE THIS MATTER BACK TO THE FILE OF CIT(A) TO DECIDE ALL THE LEGAL ISSUES INCLUDING THIS APPEA L. THE CIT(A) SHOULD NOT BE INFLUENCED BY THE ORDER ALR EADY PASSED BY THE CIT(A) BUT CIT(A) SHOULD DECIDE THE MATTER INDEPENDENTLY AND LEGAL ISSUE GOES TO THE ROOT OF THE CASE THEREFORE CIT(A) IS DIRECTED TO DECIDED THE ISSUE AFRESH AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. 7 . IN THE RESULT BOTH THE APPEALS OF THE DEPARTMENT AND C.OS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPO SE. ORDER PRONOUNCED IN THE OPEN COURT ON 1 9 .11 .2014. S D / - S D / - ( P.K. BANSAL) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 1 9 .11 .2014 P.S. - *PK* COPY TO: ( 1 ) APPELLANT ( 2 ) RESPONDENT ( 3 ) CIT CONCERNED ( 4 ) CIT(A) CONCERNED ( 5 ) D.R ( 6 ) GUARD FILE TRUE COPY BY ORDER