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TMI Blog2014 (7) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... esult of such enquiry so as to afford an opportunity to the assessee to make his submission with regard thereto - An appellate court cannot be prevented from perusing the lower court records - It is a strange submission to make that the lower court records could not have been perused without giving an opportunity to the assessee - Tribunal was not taking evidence of the matter as a Court at the first instance would do. A period of 47 days’ time is not time long enough which can even make anyone suspicious as regards the correctness of the date of the order - the presumption arising out of clause (e) of Section 114 proves the fact that the order was passed on 31st December, 2008 - The same presumption once again would apply to the order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t order. I have also gone through the assessment records. On perusal of assessment records and the order sheets attached to the assessment record, it is seen that the assessment was completed on 31.12.2008 and it was signed on the same date along with the demand notice and notice u/s. 274 read with section 271 of the I.T. Act. The assessment order and the notice of demand were handed over to the Departmental Notice Server for service of the same on the appellant. However, it is reported by the notice server that the assessment order and the demand notice were refused to accept by the appellant. Later on, the order and the demand notice were sent by Registered Post. It is also observed from the assessment records that the last date of hearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder: what is required for completion of the assessment is the determination of the tax liability and issue of demand notice but certainly not the service of the same on the assessee. Similar view was taken by the Apex Court in CIT v. Balkrishna Malhotra [1971] 81 ITR 759 (SC), and also in - (1) Rm. P. R. Viswanathan Chettiar v. CIT [1954] 25 ITR 79 (Mad.), (2) Ramanand Agarwalla v. CIT [1985] 151 ITR 216 (Gauhati), (3) Badri Prosad Bajoria v. CIT [1967] 64 ITR 362 (Cal), (4) Kodidasu Appalaswamy Suryanarayana v. CIT [1962] 46 ITR 735 (AP), (5) Esthuri Aswathiah v. CIT [1963] 50 ITR 764 (Mys.). In view of above, it is held that the assessment was completed within the limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oved with the aid of the aforesaid presumption in law. It was open to the assessee to rebut the presumption which the assessee did not do. Mere fact that the demand notice was served after 47 days from 31st December, 2008 is not enough to show that the order was not passed on 31st December, 2008. He, therefore, contended that the order passed by the learned Tribunal is patently bad being contrary to law and should be set aside. Mr. Bharadwaj, learned advocate appearing for the assessee, submitted that the assessment records were called for by the learned Tribunal. In spite of repeated opportunities, the department could not produce the same. Therefore, an adverse inference should be drawn that in case the documents had been produced, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT (Appeal) perused the same. We have considered the rival submissions advanced by the learned advocates for the parties and are of the opinion that the submission of Mr. Dudharia must be accepted. The submission that the assessment records were taken into account by the CIT(A) without disclosing the same to the assessee is altogether without any merit. The appellate authority cannot be expected to dispose of an appeal without looking into the assessment records. Had the appellate authority relied upon any independent enquiry or the result of any such enquiry, then it would have been incumbent upon the appellate authority to inform the assessee about the result of such enquiry so as to afford an opportunity to the assessee to make his s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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