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Judgment
Shantanu Kemkar, J.—With consent heard finally. By filing this petition under Art. 226/227 of the Constitution of India, the petitioner has made a prayer for issuance of writ, order or direction expunging the directions issued by the CIT(A) while passing order dt. 30th Nov., 2012 to the extent that such directions pertaining to asst. yrs. 2008-09 to 2011-12 the years which were indisputably not the subject-matter of the appeal before the CIT(A). The petitioner has also sought directions to the authorities/officers working under the supervision of or hierarchically subordinate or administratively answerable to CIT(A) from acting upon such directions.
Briefly stated, challenging the final assessment order dt. 31st Dec, 2010 passed by Addl. CIT, Range-2, Indore pertaining to asst. yr. 2007-08 the petitioner had filed Appeal No. IT-361/2010-11/396 before the CIT(A)-I, Indore. The CIT(A) while passing the impugned order dt. 30th Nov., 2012 issued the directions as contained in para 5 and its sub-paras of the order regarding allowability of deduction under s. 10A of the IT Act to Noida Unit 1, Noida Unit 2, Noida Unit 3, Hyderabad, Chennai Unit 1 and Chennai SEZ--remedial action requires for withdrawal of claim for asst. yrs. 2008-09 to 2011-12.
According to Shri Ajay Vohra, the learned counsel for the petitioner the CIT(A) in excess of its jurisdiction held in para 5.10 of the impugned order that in the four assessment years (2008-09 to 2011-12) the total claim under s. 10A of the Act will have to be denied. It has gone to the extent of issuing directions to the AO to take note of the observations/findings made while completing the regular assessment on the issue of denial of deductions under s. 10A of the Act and further proceed for taking remedial action in accordance with law. It further directed to AO that the entire para (5) and its sub-para of the order dt. 30th Nov., 2012 may be incorporated in the assessment orders.
The learned counsel for the petitioner has also argued that the aforesaid directions contained in para (5) and sub-paras are in excess of the jurisdiction vested in the CIT(A) under s. 251 of the IT Act, 1961. According to him, the CIT(A) has pre-judged the issue regarding the allowability of deduction of petitioner''s units for the asst. yrs. 2008-09 to 2011-12. He submits that issuance of such directions by the CIT(A) to the AO for the other years which were not before the CIT(A), is contrary to the provisions of law and various judicial pronouncements.
Shri R.L. Jain, learned senior counsel appearing for the respondents submitted that the directions which have been made are not binding in nature and it is open for the AO to act independently in accordance with law. In para 5.37 of the return filed on behalf of the respondents we find a categorical stand taken by the respondents "that the findings and observations mentioned in the appeal order were required to be looked into and a decision was to be taken by learned AO independently as per law. Further, the AO is not bound to agree with the findings and observations given by the learned CIT(A) and as per the IT Act no binding directions can be issued to AO except under s. 144A by the Addl. or Jt. CIT". In para 5.40 of the return it has been further stated on behalf of the respondents "that the learned CIT(A) has only mentioned his findings and observations and no binding directions were issued as the learned CIT(A) cannot issue any binding direction for other assessment years which is sub judice".
Having considered the submissions made by learned counsel for the parties and in view of the categorical stand taken by the respondents in reply to the petition in paras 5.37 and 5.40 as extracted above, we dispose of this petition by observing that the directions contained in para 5 and its sub-paras of the impugned order passed by CIT(A) shall not be construed to be of binding nature by the AO and it will be open for AO to proceed with the assessment proceedings in accordance with law uninfluenced by the said impugned observations/directions contained in the impugned order. With the aforesaid observations, we dispose of the writ petition. We further make it clear that in case the petitioner is aggrieved by the other part of the order dt. 30th Nov., 2012 passed by the CIT(A), the petitioner is free to approach the Tribunal with a prayer for condonation of delay and the Tribunal shall consider such prayer for condonation of delay, keeping in view that the petitioner was prosecuting the remedy before this Court.