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TMI Blog2014 (10) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was answered after analysing various aspects. It is not correct to say that the decision of the Division Bench concerning the validity of the notice will prevent the Tribunal to consider any other ground which the appellant has raised for consideration. - It cannot be said that when the court sent back the matter for fresh consideration, no other points than those raised in the grounds of appeal can be considered and no additional ground can be allowed to be raised for consideration – thus, the annexure H order passed by the Tribunal is set aside - The Tribunal is directed consider the matter afresh in the light of the findings rendered by us above and it is up to the Tribunal to consider the additional ground raised by the appellant and take appropriate decision as enjoined by law – Decided in favour of assessee. - ITA.No. 85 of 2013 - - - Dated:- 2-7-2014 - MR. T.R.RAMACHANDRAN NAIR SMT. P.V.ASHA, JJ. FOR THE APPELLANT : SRI.M.GOPIKRISHNAN NAMBIAR, SRI.P.GOPINATH, SRI.P.BENNY THOMAS, SRI.K.JOHN MATHAI AND SMT.PREETHA S NAIR FOR THE RESPONDENT : SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) JUDGEMENT T. R. Ramachandran Nair J.- This appeal is filed aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant again raised an additional ground relying upon the decision of the apex court in Manish Maheshwari v. Asst. CIT [2007] 289 ITR 341 (SC). The said additional ground was refused to be admitted by the Tribunal. The Tri- bunal apparently has taken the view that the powers of the Tribunal are confined to the order of the remand passed by this court as per annexure F wherein, while disposing of the appeal, a direction was given by this court to consider the appeal on the merits. On that score, the appellant's plea has not been accepted. 3. We heard the learned counsel for the appellant, Shri P. Gopinath Menon and the learned senior counsel for the Department, Shri P. K. R. Menon. 4. Learned counsel for the appellant, Shri P. Gopinath Menon, contended that the additional ground raised by the appellant is on a question of law. It cannot be said that the powers of the Tribunal are limited so as to consider the same. It is submitted that in the earlier round of litigation, the only question considered by this court was regarding the validity of the notice. Herein, the contention raised is that the Assessing Officer should have appreciated that the conditions precedent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned in the said notice that it is issued under sec- tion 158BC also. Further discussions have been made in the said paragraph. In paragraph 6, the following findings have been rendered : What is clear from the above provisions is that the notice should be issued in the name of the assessee proposed to be assessed and in the case of an association of persons, to the principal officer or any member thereof and serve the notice on such person to represent the association of persons. In this case, admittedly, notice was received by the respondent-assessee, and one of the members of the association of persons. In other words, when the assessee admits receipt of notice and files its proper return in the prescribed form in terms of the notice, we do not think that the assessee is entitled to contend that the notice is not served in accordance with the procedure prescribed under the above sections. In our view, proof of the detailed procedure adopted for service of notice under sub-section (2) of section 282 is required to be enquired into only when the assessee complains non- receipt of notice. In other words, when notice issued is accepted by the assessee and return i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed itself leading to the assessment. 8. Learned counsel for the appellant relied upon the judgment of a Divi- sion Bench of this court in CIT v. Kerala State Co-operative Marketing Federation Ltd. [1992] 193 ITR 624 (Ker) to contend for the position that there is no bar in raising additional grounds in an appeal and the Tribunal has got ample power to permit the parties to do the same. The Division Bench, after analysing section 254(1) of the Act and rule 11 of the Income- tax (Appellate Tribunal) Rules, 1963, has held as follows (headnote) : The Tribunal gets power under section 254(1) of the Income-tax Act which provides that the Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. Rule 11 of the Income-tax (Appellate Tribunal) Rules, 1963, enables the Tribunal to permit the appellant to urge any ground not set forth in the memorandum of appeal. That rule provides that the appellant shall not, except by leave of the Tribunal, urge or be heard in support of any ground not set forth in the memorandum of appeal. It is further provided that it is open to the Tribunal to rest its deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional ground by the appellant is a question of law, that too by relying upon the decision of the apex court in Manish Maheshwhari's case [2007] 289 ITR 341 (SC). It is, therefore, sub- mitted that the parties are not prevented from raising a question of law and it is up to the Tribunal to consider the acceptability of the same and such a power of the Tribunal is not curtailed by the judgment rendered by the Division Bench as per annexure F. The learned senior counsel for the Revenue reiterated that the decision applicable in this case is Panchajan- yam Management Agencies' case [2011] 333 ITR 281 (Ker). We need not resolve the said controversy in this appeal, as it is up to the Tribunal to consider the same. We are definitely of the view that the pow- ers of the Tribunal are not curtailed by the judgment of the Division Bench as annexure F, merely because the said judgment, in the operative portion directed the matter to be considered on the merits after hearing the par- ties. It is also not correct to say that the decision of the Division Bench concerning the validity of the notice will prevent the Tribunal to consider any other ground which the appellant has rais ..... X X X X Extracts X X X X X X X X Extracts X X X X
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