The Income-tax Officer, Ward–7(1)(4), Bangalore v. Weg Industries (India) Pvt. Ltd
[Citation -2019-LL-0828-33]

Citation 2019-LL-0828-33
Appellant Name The Income-tax Officer, Ward–7(1)(4), Bangalore
Respondent Name Weg Industries (India) Pvt. Ltd.
Court ITAT-Bangalore
Relevant Act Income-tax
Date of Order 28/08/2019
Assessment Year 2012-13
Judgment View Judgment
Keyword Tags error in order • recalling order • non-appearance • remand order
Bot Summary: CIT Date of hearing 09.08.2019 Date of Pronouncement 28.08.2019 ORDER Per Shri A.K. Garodia, Accountant Member This M.P. is filed by the revenue on 27.06.2019 by stating that there are certain apparent mistakes in the impugned Tribunal order dated 31.12.2018. The Hon'ble ITAT vide its order in IT(TP)A No. 419/Bang dated 31.12.2018 for AY 2012-13, set aside the final order of assessment u/s. The Hon'ble Tribunal can set aside the matter only to the authority from whose order the appeal has been preferred, or Assessing Officer. From the above contents of sub-section 13 of section 144C, it is seen that as per this section 144C, the AO has to simply pass the assessment order in conformity with the directions of DRP. Hence, although the assessment order is passed by the AO, the same has to be compulsorily in conformity with the directions of DRP. Moreover, as per the provisions of sub-section 1 of section 254 of IT Act, the Tribunal may pass such orders as it thinks fit. Where the Tribunal is of the opinion that the case should be remanded, it may remand it to the authority from whose order the appeal has been preferred or to the Assessing Officer, with such directions as the Tribunal may think fit. From the above Rule 28, it comes out that the matter may be remanded by the Tribunal to the authority from whose order the appeal has been preferred. We have seen that in the present case although the order is passed by the AO but it is compulsorily required to be in conformity with the directions of DRP and therefore, in our considered opinion, in view of the combined reading of Rule 28 of ITAT Rules, 1963, section 144C(13) and section 254(1) of the IT Act, it cannot be said that there is an apparent mistake in the Tribunal order if the Tribunal has restored back the matter in the present case to DRP and not to the AO. 7.


IN INCOME TAX APPELLATE TRIBUNAL C BENCH BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER M.P. No. 52/Bang/2019 (in IT(TP)A No. 419/Bang/2017) Assessment Year 2012-13 M/s. Weg Industries (India) Pvt. Ltd., Income Tax Officer, No. 38, Ground Floor, Ward-7(1) (4), Vs. 1st Main Road, Lower Palace Bangalore. Orchards, Bangalore 560 003. PAN AAACW7745D APPELLANT RESPONDENT Assessee by None Revenue by Dr. P.V. Pradeep Kumar, Addl. CIT (DR) Date of hearing 09.08.2019 Date of Pronouncement 28.08.2019 ORDER Per Shri A.K. Garodia, Accountant Member This M.P. is filed by revenue on 27.06.2019 by stating that there are certain apparent mistakes in impugned Tribunal order dated 31.12.2018. 2. For ready reference, contents of this M.P. are reproduced hereinbelow. 1. Hon'ble ITAT vide its order in IT(TP)A No. 419/Bang dated 31.12.2018 for AY 2012-13, set aside final order of assessment u/s. 143(3) r.w.s. 144C (13) dtd. 16.12.2016 passed by Assessing Officer in consequent to directions of DRP, and has remanded back issue to file of DRP for fresh decision. 2. It may be observed that Hon'ble Tribunal has not appreciated fact that Rule 28 of Income-tax(Appellate Tribunal) Rules 1963 states that "where Tribunal is of opinion that case should be remanded, it may remand it to authority from whose order appeal has been preferred or to Income Tax Officer, with such directions as Tribunal may think fit." Hence, Hon'ble Tribunal can set aside matter only to (i) authority from whose order appeal has been preferred, or (ii) Assessing Officer. 3. In this case, order appealed against by assessee lies against final assessment order passed by AO u/s. 143(3) r.w.s. 144C (13), hence case cannot be remanded back to DRP, as authority from whose order appeal has been preferred is not M.P. No. 52/Bang/2019 (in IT(TP)A No. 419/Bang/2017) Page 2 of 3 DRP. 4. Since, this being mistake apparent from records, it is prayed that instant order of Tribunal may be recalled and impugned issue may be re-consider and re-adjudicated. 3. This M.P. was fixed for hearing on 09.08.2019 and notice of hearing was sent to assessee but none appeared on behalf of assessee on appointed date of hearing and hence, this M.P. of revenue was heard ex-parte qua assessee. ld. DR of revenue submitted that in view of Rule 28 of ITAT Rules, 1963, Tribunal should have restored matter back to file of AO only and not to DRP. 4. We have considered submissions of ld. DR of revenue and gone through impugned Tribunal order. We find that in this case, assessment order was passed by AO u/s. 143(3) r.w.s. 144C (13) of IT Act. For ready reference, we reproduce contents of sub-section 13 of section 144C which are as under. Reference to dispute resolution panel. 144C. (13) Upon receipt of directions issued under sub-section (5), Assessing Officer shall, in conformity with directions, complete, notwithstanding anything to contrary contained insection 153 or section 153B, assessment without providing any further opportunity of being heard to assessee, within one month from end of month in which such direction is received. 5. From above contents of sub-section 13 of section 144C, it is seen that as per this section 144C (13), AO has to simply pass assessment order in conformity with directions of DRP. Hence, although assessment order is passed by AO, same has to be compulsorily in conformity with directions of DRP. Moreover, as per provisions of sub-section 1 of section 254 of IT Act, Tribunal may pass such orders as it thinks fit. Hence in our considered opinion, this objection of AO is not valid that Tribunal cannot restore matter back to DRP in view of Rule 28 of ITAT Rules, 1963. For ready reference, we reproduce contents of Rule 28 of ITAT Rules, 1963. same are as under. Remand of case by Tribunal. 28. Where Tribunal is of opinion that case should be remanded, it may remand it to authority from whose order appeal has been preferred or to [Assessing Officer], with such directions as Tribunal may think fit. M.P. No. 52/Bang/2019 (in IT(TP)A No. 419/Bang/2017) Page 3 of 3 6. From above Rule 28, it comes out that matter may be remanded by Tribunal to authority from whose order appeal has been preferred. We have seen that in present case although order is passed by AO but it is compulsorily required to be in conformity with directions of DRP and therefore, in our considered opinion, in view of combined reading of Rule 28 of ITAT Rules, 1963, section 144C(13) and section 254(1) of IT Act, it cannot be said that there is apparent mistake in Tribunal order if Tribunal has restored back matter in present case to DRP and not to AO. 7. In result, M.P. filed by revenue is dismissed. Order pronounced in open court on date mentioned on caption page. Sd/- Sd/- (PAVAN KUMAR GADALE) (ARUN KUMAR GARODIA) Judicial Member Accountant Member Bangalore, Dated, 28th August, 2019. Copy to 1. Appellant 4. CIT(A) 2. Respondent 5. DR, ITAT, Bangalore 3. CIT 6. Guard file By order Assistant Registrar, Income Tax Appellate Tribunal, Bangalore. Income-tax Officer, Ward7(1)(4), Bangalore v. Weg Industries (India) Pvt. Ltd
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