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Judgment
PER ANUBHAV SHARMA, JM:
This appeal preferred by the assessee against the order dated 30.05.2025 of Ld. Commissioner of Income Tax (Appeals)-26, New Delhi (hereinafter referred to as the First Appellate Authority or ‘the ld. FAA’ for short) in DIN No : ITBA/APL/M/250/2025-26/1076592261(1)arising out of the assessment order dated 31.03.2025 u/s 147 r.w.s 144 the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) passed by ACIT, CC-32(1), New Delhi,for AY: 2018-19.
On hearing both sides we find that the addition of Rs.3,02,40,000/- on account of alleged unexplained money u/s 69 was made under assessment completed u/s 147 r.w.s 144 of the Act and as assessee filed appeal before Ld First Appellate Authority taking recourse to newly inserted proviso to Section 251(1)(a) of the Act, ld. Commissioner (Appeals) had set aside the assessment and referred the case back to assessing officer for making fresh assessment.
We find that assessee had raised legal grounds including that reopening was barred by limitation and there was no compliance on mandatory provision for assumption of jurisdiction u/s 147 to Section 151 of the Act. However, these grounds have not been adjudicated.
We are of the considered view that the powers vested by way of proviso to Section 251(1)(a) of the Act, to Commissioner (Appeals) has to be exercised judicially and where pure questions of law questioning the validity of assumption of jurisdiction itself are raised then it is not justified to set aside the assessment order for fresh assessment by taking recourse to proviso to Section 251(1)(a).
In the light of aforesaid discussion we allow the appeal of the assessee for statistical purposes and restore the issues to the files of Ld. CIT(A) to decide the legal ground of the assessee and thereupon pass the order afresh.
The appeal of the assessee is allowed for statistical purposes.