The Pr. Commissioner Of Income Tax-2, Jaipur v. M/S Sumeru Enterprises, H-1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Income Tax Appeal No. 64/2021 The Pr. Commissioner Of Income Tax-2, Jaipur. ----Appellant Versus M/s Sumeru Enterprises, H-1-29, Old Tourist Hotel Building,Subhash Marg, C-Scheme, Jaipur (Aaefs3266L) ----Respondent For Appellant(s) : Mr. Sandeep Pathak, Adv. WithMrs. Jaya Pathak, Adv.Mrs. Jaya Pathak, Adv. HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE PRAVEER BHATNAGAR Order 16/10/2023 1.Heard on admission. 2.This appeal has been filed proposing/raising following proposed substantial question of law:- “i).Whether on the facts and in thecircumstances of the case and in law the ITAT wasjustified in setting aside the issue of expenditure of Rs.11,59,39,654/- claimed by assessee under Section 36(1)(vii) while no business was being runby the firm during the year.”by the firm during the year.” 3.Learned counsel appearing for the Revenue Board submittedthat learned Tribunal while remanding the case for considerationafresh has made certain observations, which may affectre-scrutiny by the Assessing Officer after consideration of entirematerial on record. 4.From the order passed by the Tribunal, we find that the mainoperative reason for the Tribunal to set aside the order ofassessment and remanding the case back for consideration is thejournal entries in respective ledger account of the parties, whichaccording to the assessee, reflect the reversal of outstandingcharges during the previous year relevant to impugnedassessment year and such charges according to the assessee wereduly offered in the earlier years and all these details in terms ofjournal vouchers, ledgers and entries in the books of accounts,copies of return of income for past asessment years thoughsubmitted not examined. 5.The findings recorded by the Tribunal in paragraph 33 of theorder under challenge read as below:- “…….we are constrained to remand the matter tothe file of the AO. Therefore, for the limited purposesof verifying these two aspects, the matter is set aiseto the file of the AO and where the same is found tobe in order, the AO is directed to allow the necessaryrelief to the assessee. In the result, the ground ofappeal is partly allowed for statistical purposes.” 6.We find that the Tribunal while remanding the case of remaining assessment for rescrutiny for reconsideration byAssessing Officer has made observations as below:- “To our mind, all the AO has to examine iswhether the amount of aforesaid charges sorecoverable have been actually reversed inrespectiveledgeraccountsofindividualallottees/debtors and written off in the books ofaccounts of the assessee during the previous yearrelevant to impugned assessment year or not.” 7.The other observations made in the aforesaid paragraph read as under:- “The AO is directed to allow the necessary reliefto the assessee.” 8.The observations, which have been made by the Tribunal donot decide the issue pending consideration, the issue on which thecase has been remanded to the Assessing Officer forreconsideration. 9.At the first place, the Assessing Officer has been directed toexamine whether the amount of aforesaid charges, sorecoverable, have been actually reversed in respective ledgeraccounts of individual allottees/debtors and written off in thebooks of accounts of the assessee during the previous yearrelevant to impugned assessment year or not. 10.It is not a finding of fact that charges have been actuallyreversed. This would be a matter of examination by the AssessingOfficer. 11.Further the observation, directing the Assessing Officer toallow the necessary relief to the assessee, it goes without sayingthat nature of charges would depend upon examination of materialon record and not a mechanical exercise for granting or allowingany relief. 9.At the first place, the Assessing Officer has been directed toexamine whether the amount of aforesaid charges, sorecoverable, have been actually reversed in respective ledgeraccounts of individual allottees/debtors and written off in thebooks of accounts of the assessee during the previous yearrelevant to impugned assessment year or not. 10.It is not a finding of fact that charges have been actuallyreversed. This would be a matter of examination by the AssessingOfficer. 11.Further the observation, directing the Assessing Officer toallow the necessary relief to the assessee, it goes without sayingthat nature of charges would depend upon examination of materialon record and not a mechanical exercise for granting or allowingany relief. 12.In other words, the assessee would be entitled for relief, forwhich, he may held entitled only after scrutiny of material onrecord after exercising the demand. 13.Accordingly, the present appeal stands dismissed. (PRAVEER BHATNAGAR),J(MANINDRA MOHAN SHRIVASTAVA),JMonika/33