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TMI Blog2010 (11) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... nd circumstances of the case it can be held that the order passed by the assessing officer on the first occasion had merged in absolute terms in the order passed by the CIT(A) on the first occasion and further the order passed by the CIT(A) does not tantamount to open remand but a partial remand - In the case of Commissioner of Income Tax v. K.L.Rajput (supra) has held that order of the Income Tax Officer merges with the appellate order only to the extent it was considered and decided by the appellate authority but the matter which is not covered by the appellate order of the appellate authority is left untouched and to that extent assessment order survives – It was held that the order was an open remand X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation. The Commissioner of Income Tax further held that since entire block assessment has been set aside and has been re-framed from the return stage and since the Commissioner of Income Tax (Appeals) has not adjudicated any of the grounds, therefore, the appellant has right to raise fresh or additional ground when the assessment has been reframed afresh. Accordingly, it was held that it is permissible for the assessee to raise an additional ground with regard to validity of the notice under Section 143(2) of the Act. 4. Being aggrieved by the aforesaid order, the revenue preferred an appeal before the Income Tax Appellate Tribunal. Vide order dated 13-10-2006, the Tribunal allowed the appeal preferred by the revenue. The Income Tax Appellate Tribunal relying on the decision rendered by the Commissioner of Income Tax (Appeals) of ITAT Ahmedabad Bench as well as Chennai Bench and Pune Bench held that the Commissioner of Income Tax (Appeals) was not justified in quashing the assessment orders on the ground that no notice under Section 143(2) of the Act was issued within the prescribed time limit. It was further held that the Commissioner, Income Tax (Appeals) was not justified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. CIT, [1983] 139 ITR 1064 (MP) in support of his contention. 6. Learned counsel for the revenue, on the other hand, has supported the order passed by the Income Tax Appellate Tribunal. He has fairly stated that in view of law laid down by the Supreme Court in the matter of Assistant Commissioner Income Tax and another vs. M/s. Hotel Blue Moon (Supra), notice under Section 143(2) of the Act ought to have been issued within a period of one year in respect of block assessment. However, counsel for the revenue has placed reliance on paragraphs 14 and 16 of the order passed by the ITAT and has stated that order is based on cogent reasons and does not call for interference. It is urged by him that it was not permissible for the petitioner to raise a contention with regard to validity of notice under Section 143(2) of the Act. It was contended by the learned counsel for revenue that issue with regard to validity of notice was impliedly decided. In support of his contention, learned counsel has referred to the decisions reported in CIT vs. Indian Auto Stores, [1981] 129 ITR 554 and CIT vs. City Palayacot Co., [1980] 122 ITR 430. 7. As stated supra, an order of assessment was passed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ragraphs 8 to 8.6 of the order passed by the Commissioner of Income Tax (Appeals) dated 26.09.2003, we find that discretion to permit the assessee to raise an additional ground has been exercised by him in accordance with law and is based on reasons. The question whether notice under Section 143(2) of the Act was issued within prescribed time limit is a question of law and arose for consideration before the Commissioner, Income Tax (Appeals) on admitted facts. Besides that the issue whether or not the notice under Section 143(2) of the Act ought to be issued within a period of one year in respect of block assessment is no longer res integra and is concluded by the judgement of the Apex Court rendered in Assistant Commissioner Income Tax and another vs. M/s Hotel Blue Moon (supra). Since in the instant case notice has not been issued within a period of one year, therefore, the samevitiates the proceedings under Section 158 BC of the Act. We, therefore, are of the view that the said issue since goes to the root of the matter was rightly allowed to be raised before the Commissioner, Income Tax (Appeals). In view of our preceding analysis, the first substantial question of law formulat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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