Madhya Pradesh H.C : Present appeal has been filed by the assessee under s. 260A of the IT Act, 1961. The appellant is a partnership firm, dealing in gold and silver ornaments and money-lending at Seoni.

High Court Of Madhya Pradesh

Anil Kumar Sunil Kumar Naik vs. ITO & Anr.

Section 260A

Asst. Year 1993-94

Bhawani Singh, C.J. & Arun Mishra, J.

IT Appeal No. 82 of 2000

10th May, 2001

Counsel Appeared

Sunil Nema, for the Appellant

JUDGMENT

ARUN MISHRA, J. :

Present appeal has been filed by the assessee under s. 260A of the IT Act, 1961. The appellant is a partnership firm, dealing in gold and silver ornaments and money-lending at Seoni. For the asst. yr. 1993-94 return was filed declaring the income as nil, as the payment of interest and salary to the partners was in excess of the profit. Revised return was filed declaring a total income of Rs. 1,32,506. The appellant had valued the excess closing stock of silver weighing 35,713 kg. at Rs. 1,75,000. It was added income in the aforesaid return. There was a survey in the business premises of the appellant on 22nd March, 1992, according to which excess stock of Rs. 1,71,000 was found which was surrendered by the firm and it was in these circumstances a revised return was filed on 3rd March, 1994. The appellant claimed Rs. 72,000 payable to the partners of the firm which was allowed by order dt. 2nd Jan., 1996, passed by the ITO, Seoni. The matter was taken up in sue motu revision by the CIT Jabalpur. It was held therein that the income added at Rs. 1,75,000 did not constitute income from business and since the ITO allowed the claim of the appellant, the order of the ITO was erroneous and prejudicial to the interest of Revenue. It required revision under s. 263 of the IT Act and hence directions were issued that the original order passed on 2nd Jan., 1996, be cancelled and an assessment should be made de novo. During the course of proceedings under s. 263 of the IT Act, a notice was issued by the CIT. According to the notice, the salary paid to the partners was put at Rs. 29,506 and amount claimed at Rs. 72,000 as per the revised return constituted an error and it was proposed to be disallowed. Notice, dt. 30th Sept., 1997, was issued which was challenged in appeal before the Tribunal, Jabalpur, and disallowance of Rs. 42,494 was also challenged. The Tribunal rejected the appeal and held that the CIT was justified in cancelling the assessment and directing the AO to make the same de novo and while making de novo assessment, the AO would pass a speaking order and appellate authorities are also at liberty to adjudicate the issue involved. Therefore, the Tribunal declined to interfere in the appeal filed before it. Thus, the order, dt. 28th Jan., 2000, passed by the Tribunal has been assailed in the present appeal.

We find from perusal of the order passed by the Tribunal that the final adjudication has not been made and the matter has to be considered de novo by the AO and with respect to CIT(A), appellate authority, it has been observed by the Tribunal that the appellate authority is at liberty to adjudicate the issue involved as well as the AO.

In view of the observations made by the Tribunal, we are not inclined to enter into the merits of the matter in the present appeal. No substantial question of law is involved in the present appeal. Same is dismissed in limine.

[Citation : 254 ITR 639]

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