If issue set aside by ITAT further appeal on same subject is deemed to be set aside subject to the condition

IN THE INCOME TAX APPELLATE TRIBUNAL

DELHI BENCH ‘H’: NEW DELHI

BEFORE SHRI G.D.AGRAWAL, VICE PRESIDENT AND

SHRI I.C.SUDHIR, JUDICIAL MEMBER

ITA No.3470/Del/2010

Assessment Year: 2007-08

Income Tax Officer,

Ward-2,

Rohtak.

(Appellant)

Vs.

Shri Virender Bansal,

S/o Shri Bhagwan Dass,

R/o HUDA Complex,

Civil Road, Rohtak.

PAN: AAMPB5283A.

 (Respondent)

Appellant by: Shri Arun Kumar Jain, Advocate.

Respondent by: Shri A.K.Mishra, CIT-DR.

ORDER

PER G.D.AGRAWAL, VP:

This appeal by the Revenue is directed against the order of learned CIT(A), Rohtak dated 12th May, 2010 for the AY 2007-08.

2. The Revenue has raised the following grounds:-

“1. On the facts and in the circumstances of the case, the ld.CIT(A) has erred in law and facts in calculating peak credit at Rs.3,45,914/- against the addition of Rs.12,85,000/-.

2. On the facts and in the circumstances of the case, the ld.CIT(A) has erred in law and facts in calculating peak credit, even when the assessee has not taken such grounds of appeal.

3. The ld.CIT(A) taken the peak credit without considering the following judgments:-

a. Roshan Di Hatti Vs. CIT (1977) 107 ITR 938(SC).

b. CIT Vs. M.Ganapathi Mudaliar (1964) 53 ITR 623 (SC).

c. CIT Vs. R.S.Rathore (1995) 212 ITR 390 (Raj.).

4. That the appellant craves for the permission to add, delete or amend the ground of appeal before or at the time of hearing of appeal.”

3. However, at the time of hearing before us, it was pointed out by the learned counsel that the learned CIT(A) had allowed only part relief and, therefore, against the addition sustained at `3,45,914/-, the assessee had filed appeal before the ITAT. The ITAT, in its order dated 5th May, 2011 in ITA No.3142/Del/2010, set aside the entire matter to the file of the Assessing Officer for deciding the issue afresh. Since the entire addition of `12,85,000/- has been set aside by the ITAT to the file of the Assessing Officer, this appeal by the Revenue does not survive.

4. Learned DR, on the other hand, relied upon the order of the Assessing Officer.

5. We have heard the arguments of both the sides and perused the material placed before us. The Assessing Officer had made the addition of `12,85,000/- for unexplained credit in the assessee’s bank account. On appeal, learned CIT(A) reduced the addition to `3,45,914/-. The Revenue in the present appeal has challenged the relief allowed by the learned CIT(A). The assessee had also challenged he addition sustained by the learned CIT(A) at `3,45,914/-. While deciding the assessee’s appeal, the ITAT, in ITA No.3142/Del/2010 vide order dated 5th May, 2011, restored the issue to the file of the Assessing Officer to decide the same afresh after providing an opportunity of hearing to the assessee. Since the entire issue has already been set aside by the ITAT, the issue raised in the Revenue’s appeal is also deemed to be set aside. In view of the above, no further adjudication on our part is required. The Revenue’s appeal is also deemed to be allowed for statistical purposes as the Assessing Officer has to decide the entire matter afresh.

6. In the result, the appeal of the Revenue is deemed to be allowed for statistical purposes.

Decision pronounced in the open Court on 22nd March, 2013.

Sd/- Sd/-

(I.C.SUDHIR) (G.D.AGRAWAL)

JUDICIAL MEMBER VICE PRESIDENT

Dated: 22.03.2013

VK.

Copy forwarded to: -

1. Appellant: Income Tax Officer, Ward-2, Rohtak.

2. Respondent: Shri Virender Bansal, S/o Shri Bhagwan Dass, R/o HUDA Complex, Civil Road, Rohtak.

3. CIT

4. CIT(A)

5. DR, ITAT

Assistant Registrar