9911796707
TMI Blog2012 (10) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... erpretation of a judgment given in different context. 3. On facts & in law, the learned AO/CIT(A) have erred in presuming that the law does not allow determination of tax by spreading year wise interest to the relevant periods, only for a specific purpose, though the entire interest has been shown in the return as income of the year in which it was received. 2. At the outset of hearing the learned AR pointed out that the assessees had questioned the validity of notices issued under section 148 of the Act, since these were not served as per the law upon the assessees or the persons authorized to receive these notices on behalf of the appellants, before the Assessing Officer but the AO did not bother to dispose of this objection. In support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 296 ITR 90 (Bom.). 3. The learned DR on the other hand, submitted that no specific objection regarding the validity of service of notice issued u/s 148 of the Act upon the assessees was raised before the authorities below nor any additional ground in this regard has been raised before the Tribunal. Hence, the above objection of the learned AR could not be entertained by the Tribunal at this stage. She submitted that undisputedly the assessees have participated in the assessment proceedings and first appellate proceedings, hence, no grievance to this effect survives with the assessees. In support she cited following decisions:- (1) Latha Chandy vs. CIT (2003) 260 ITR 385 (Ker.); (2) CIT vs. Smt. Kanti Devi Gupta (2005) 274 ITR 526 (MP); ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssees had participated in the assessment proceedings but that is not enough to draw an inference that they had waived their objection regarding the validity of service of notice issued u/s 148 upon them. Service of notice u/s 148 in our view is sine quo non to acquire jurisdiction u/s 147 of the Act to frame the assessment under the said provisions read with sec. 143(3) of the Act. When objection is raised on the validity of service of such notices which is ultimately going to affect the very jurisdiction of an authority to proceed in furtherance to the alleged defective service of the notice, it is duty of an authority to dispose of such preliminary objection first before proceeding further. The AO in the present case has failed on such du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er these circumstances and to meet out the end of justice, we find it fit to set aside the matter back to the file of the learned CIT(A) to decide the issue afresh after considering the submissions of the assessees and verifying the material available on record before the AO. The issue raised in ground No.1 before us regarding the validity of action taken under sec. 148 of the Act is thus allowed for statistical purpose. 6. In their submissions the assessees have also tried to establish that they have good case on merits on the issue raised in ground No.3. Since we are setting aside the matter to the ld. CIT(A), he/she is directed to consider it afresh after hearing the parties. 7. In the result, the appeals are allowed for statistical pu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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