,, IN INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI & BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ITA No.318/Chny/2018) Assessment Year : 2010-11 M/s Siva Industries and Holdings Deputy Commissioner of Ltd. (formerly known as P.S. Income Tax, v. Realty Pvt. Ltd.), Corporate Circle 6(2), Sterling Tower, Chennai - 600 034. No.32, Cathedral Garden Road, Chennai - 600 042. PAN : AAACS4460M (Appellant) (Respondent) - 0 Appellant by : Ms. R. Anitha, JCIT 0 /Respondent by : Sh. T. Banusekar, CA 0 Date of Hearing : 26.08.2019 0 Date of Pronouncement : 03.09.2019 ORDER PER N.R.S. GANESAN, JUDICIAL MEMBER: This appeal of Revenue is directed against order of Commissioner of Income Tax (Appeals) -15, Chennai, dated 30.10.2017 and pertains to assessment year 2010-11. 2. Ms. R. Anitha, Ld. Departmental Representative, submitted that only issue arises for consideration is power of 2 I.T.A. No.318/Chny/18 CIT(Appeals) to set aside assessment and examine issue afresh. Referring to Section 251(1)(a) of Income-tax Act, 1961 (in short 'the Act'), Ld. D.R. submitted that Parliament has specifically omitted power to set aside assessment by CIT(Appeals). Therefore, according to Ld. D.R., CIT(Appeals) ought not to have directed Assessing Officer to verify availability of exempt income earned by assessee. On query whether availability of exempt income has to be taken into consideration? Ld. D.R. very fairly submitted that availability of exempt income has to be brought on record for deciding issue in view of judgments of Madras High Court in Redington (India) Ltd. v. Addl. CIT (2017) 392 ITR 633 and CIT v. Chettinad Logistics (P.) Ltd. (2017) 80 taxmann.com 221. 4. We heard Sh. T. Banusekar, Ld. representative for assessee also and perused relevant material available on record. Madras High Court in Redington (India) Ltd. (supra) and Chettinad Logistics (P.) Ltd. (supra) held that in case there was no exempt income / dividend income earned by assessee, there cannot be any disallowance under Section 14A of Act with regard to expenditure. Therefore, it is obligatory on part of 3 I.T.A. No.318/Chny/18 Assessing Officer to examine availability of exempt income and bring on record same. Since such exercise was not done by Assessing Officer, this Tribunal is of considered opinion that matter needs to be re-examined. 5. No doubt, CIT(Appeals) has coterminous power as that of Assessing Officer. Instead of asking Assessing Officer to verify availability of exempt income, he ought to have examined same when Parliament has specifically taken away power of CIT(Appeals) to set aside assessment for verification. However, fact requires that availability of exempt income needs to be examined and brought on record. Therefore, in exercise of power conferred on this Tribunal, issue of disallowance made by Assessing Officer under Section 14A of Act is remitted back to file of Assessing Officer. Assessing Officer shall re-examine matter and bring on record availability of exempt income/dividend income and thereafter decide issue in light of judgments of Madras High Court in Redington (India) Ltd. (supra) and Chettinad Logistics (P.) Ltd. (supra). 4 I.T.A. No.318/Chny/18 6. With above observation, appeal filed by Revenue is dismissed. Order pronounced in court on 3rd September, 2019 at Chennai. sd/- sd/- (Inturi Rama Rao) (N.R.S. Ganesan) Accountant Member Judicial Member Chennai, rd 7 Dated, 3 September, 2019. Kri. 0 . 8 9 : 9 Copy to: 1. Appellant 2. .Respondent 3. ; CIT(A)-15, Chennai-34 4. Principal CIT- 6, Chennai 5. 9 . DR 6. GF. Deputy Commissioner of Income-tax, Corporate Circle- 6(2), Chennai v. Siva Industries and Holdings Ltd. (formerly known as P.S. Realty Pvt. Ltd.)