Anirban Asim Kundu Vs ACIT (ITAT Kolkata)
The CIT(A) cannot set aside and remand an assessment merely because it was passed ex parte when the assessment is not a best judgment assessment under Section 144; the first appellate authority must adjudicate the appeal on merits.
Summary: The assessee challenged the order of the CIT(A)-22, Kolkata dated 10 March 2026 for AY 2016-17. The CIT(A) had held that the Assessing Officer had jurisdiction after the case was transferred from Mumbai to Kolkata, but, observing that the assessment had been passed ex parte under section 144, set aside the assessment and remanded the matter to the Assessing Officer for a fresh assessment. Before the ITAT, the assessee contended that the assessment had actually been framed under section 147 read with section 144C and was not a best-judgment assessment under section 144. Therefore, according to the assessee, the proviso to section 251(1)(a) permitting such remand was not applicable. The ITAT accepted the substance of this contention. It observed that the CIT(A) had not decided the appeal on merits and had merely set aside the assessment before the Assessing Officer, which could be done only where the assessment was a best-judgment assessment under section 144. Since that was not the case, the Tribunal set aside the CIT(A)’s order and restored the appeal to the CIT(A) for disposal of the assessee’s grounds on merits by a speaking order, after providing reasonable opportunity of hearing. The Tribunal allowed Grounds 3 and 4, dismissed Ground 6 concerning the alleged section 127 transfer on the ground that an order under section 127 was not mentioned as an appealable order before the Tribunal under section 253, and partly allowed the remaining grounds for statistical purposes.
