CIT(A) held wrong in sending matter back to AO u/s 251 (of Income Tax Act, 1961). ITAT
CIT(A) held wrong in sending matter back to AO u/s 251 (of Income Tax Act, 1961). ITAT
Assessee dealt with business in providing security services. It filed return. In assessment, AO found assessee debited various expenses to P&L a/c. AO added amt. as undisclosed asset. On appeal, CIT(A) confirmed order of AO but remanded matter back to AO for verification. On appeal ITAT held, only power available to CIT(A) u/s 251 (of Income Tax Act, 1961) is that he may confirm, reduce, enhance or annul assessm't, besides other clauses contained therein.-501166
Facts in Brief:
1. Assessee is an individual having dealing with the business in providing security services.
2. Assessee filed its return of income through method of e-filing declaring income.
3. Assessee produced documents in support of his payments relating to PF and service tax.
4. In assessment, the AO found that the assessee debited various expenses from his P&L a/c. and the same were not verifiable from the cash book as produced by the assessee.
5. Therefore, AO by invoking section 145(3) (of Income Tax Act, 1961) estimated the income of the assessee @8% against the total receipts of Rs.2,00,92,324/-, thus added Rs.16,07,425/- to the income of the assessee.
6. AO added an amount of Rs.32.70 lakhs to the income of the assessee as undisclosed asset. Further, the AO added Rs.1,45,923/- towards accrued interest on above fixed deposits for not disclosing the same in the return of income.
7. On appeal CIT-A held, there is no primary evidence in verifying the expenses claimed by the assessee. The verification of secondary evidence cannot be considered in the absence of primary evidence.
8. CIT(A) confirmed the order of the AO in estimating the income of the assessee @8% as against the total receipts thereon.
9. CIT(A) remanded the matter to the AO to verify documents which is beyond the scope of power available to him under section 251 (of Income Tax Act, 1961).
On appeal ITAT held,
10. The main stand of the Revenue as taken in grounds of this appeal is that the Satyapriya Joardar Assessment Year: 2009-10 Commissioner does not have the powers in remanding the matter to AO with a direction to verify the claim of the assessee under section 251 (of Income Tax Act, 1961) whereas it is observed from the provision of section 251 (of Income Tax Act, 1961) that the Commissioner is not having the power to send back the file to AO to verify the claim of the assessee.
11. The only power available to him to exercise under section 251 (of Income Tax Act, 1961) is that he may confirm, reduce, enhance or annul the assessment, besides the other clauses contained therein. We, therefore, set aside the impugned order of the ld. CIT(A) on this issue and remit the matter back to him with a direction to decide the same on merit, after giving the assessee proper and sufficient opportunity of being heard.
12. In the result, the appeal filed by the Revenue is allowed for statistical purposes.
News Reference:Veerprabhu Marketing Ltd., ... vs Assessee
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