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TMI Blog2017 (6) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... nal ground assailing the notice issued under Section 148 of the Act. Accordingly, question no. 1 as above is answered in favour of the assessee and against the department holding that despite no plea regarding the validity of the notice having been taken by the respondent assessee before the Assessing Officer and the CIT (appeals) but as his objections against the notice were left undetermined, the tribunal was justified in permitting the said ground to be taken for the first time in appeal before it. Whether the tribunal is justified in setting aside the assessment order as confirmed by the Commissioner of Income Tax, Appeals holding the notice to be bad and assessment illegal only for the reason that the objections to the notice were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals arise out of the common order of the Income Tax Appellate Tribunal, New Delhi dated 29.52015 allowing the appeals of the assessee respondent for the assessment years 2007-08,2008-09, 2009-10 and 2011-12. Since the facts are identical and the legal questions arising in all appeals are common, it is considered appropriate to deal with the facts as stated in the appeal concerning assessment year 2007-08 and to decide the legal controversy on the basis of the facts pertaining to the said appeal. The case of the assessee respondent for the relevant assessment year was selected for scrutiny. On the basis of the information received from DIT (Investigation) regarding accommodation entries provided to the respondent assessee by some dummy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of assessment. In the above situation, the following three substantial questions of law arise for consideration in this appeal:- 1) Whether the tribunal could have permitted addition of a new ground assailing notice under Section 148 of the Act when there was no challenge to it before the Assessing Officer or the CIT (Appeals) by way of any objections; 2) Whether the tribunal is justified in setting aside the assessment order as confirmed by the Commissioner of Income Tax, Appeals holding the notice to be bad and assessment illegal only for the reason that the objections to the notice were not decided; and 3) Whether the tribunal could have allowed the appeal of the assessee respondent despite the fact that the person in w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. In National Thermal Power Co. Limited Vs. Commissioner of Income Tax 229 ITR 383 a three Judges Bench of the Supreme court dealt with the powers of the tribunal in relation to issues raised before it for the first time. Their Lordships of the Supreme Court held that in view of Section 245 of the Act the power of the tribunal in dealing with the appeal is expressed in the widest possible terms. There is no reason to restrict the power of the tribunal only to decide the grounds raised or taken against the order of the CIT (Appeals) and that the assessee should not be prevented from raising question before the tribunal for the first time so long as the relevant facts are on record in respect of it provided opportunity of hearing is given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 25.3.2013 issued under Section 148 of the Act the assessee respondent had filed objections dated 22.1.2014, a copy of which was placed in the paper book and that the said objections have remained undecided. The Chartered Accountant of the assessee respondent has also certified that at the time of preparation of the grounds of appeal by oversight he could not raise the ground disputing validity of the notice under Section 148 of the Act though objections to the notice were duly filed before the Assessing Officer. The above certificate of the Chartered Accountant clearly establishes that on behalf of the assessee respondent objections were filed against the notice issued under Section 148 of the Act. However, there is nothing on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly, the proceedings for reassessment may stand vitiated but the notice can not held to be bad in law. There is no finding by the tribunal for holding the notice to be bad or illegal except for the fact that the objections of assessee filed against it were not decided. In view of the fact that the objections were not considered and decided and that no illegality in the notice was established, the tribunal erred in holding the notice to be bad. The discussion above permits us to answer the second question partly in favour of the assessee and partly in favour of revenue and it is held that as the objections of the assessee respondent were left undecided the reassessment could not have been done and as such the tribunal has not erred in se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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