2014 (8) TMI 488 - HC - Income Tax

Notice for reopening of assessment u/s 148 Held that - There was no reason to interfere with the order of the Tribunal particularly, having regard to the fact that the petitioner had at the time of hearing of the appeal withdrawn its challenge to the reopening of assessment u/s 147/148 of the Act - Once the appellant have withdrawn the challenge on a particular issue by not pressing it before the ITAT, it is as good as no appeal on that ground is before the ITAT for consideration - the order of the Tribunal was passed on 5 June 2009 recorded the fact that the issue relating to reopening of assessment was not pressed by the applicant Decided against Assessee.

Summary

Issues:
Challenge to order dated 11 October 2013 passed by ITAT for rectification under Section 254(2) of the Income Tax Act,1961.

Analysis:
The petitioner challenged the order dated 11 October 2013 passed by the ITAT, seeking rectification of the order dated 5 June 2009 related to the appeal for A.Y. 1998-99. The ITAT rejected the rectification application, noting that the ground for rectification, regarding the proceedings from a reopening under section 148 of the Act being without jurisdiction, was given up during the appeal hearing in 2009. The ITAT found no mistake apparent on record and dismissed the application. The petitioner contended that the reopening notice itself was without jurisdiction, and the ITAT should have considered it. The petitioner also argued that the order dated 5 June 2009 did not accurately reflect the facts as it stated that the ground related to the invalid notice was not pressed.

The petitioner filed a Misc. Application in February 2011, primarily seeking rectification by the ITAT for not considering the issue of reopening assessment. However, it was only in March 2012 that the petitioner raised the concern that the ITAT's finding in the 2009 order was incorrect. The court noted that this appeared to be an afterthought, as the petitioner should have immediately raised the issue if the facts were indeed incorrect. The motivation for filing the rectification application seemed to stem from the ITAT's order in March 2010, which favored the respondent and dismissed the petitioner's appeal for A.Y. 1998-99.

The court found no reason to interfere with the ITAT's order, especially considering that the petitioner had withdrawn the challenge to the reopening of assessment during the appeal hearing. Once an issue is not pressed before the ITAT, it is deemed abandoned. The court highlighted that the ITAT's 2009 order correctly reflected that the issue of reopening assessment was not pressed by the petitioner. Therefore, in light of these circumstances, the court dismissed the petition without any costs.