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TMI Blog2017 (8) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the Supreme Court in the case of ACIT v. Hotel Blue Moon (2010 (2) TMI 1 - SUPREME COURT OF INDIA) but also by a decision of this court in Commissioner of Income Tax-08 v. Jai Shiv Shankar Traders Pvt. Ltd. (2015 (10) TMI 1765 - DELHI HIGH COURT) For all the aforementioned reasons, the question framed does not arise in the present appeal and is declined to be answered - ITA 935/2015 - - - Dated:- 28-4-2017 - Justice S. Muralidhar and Justice Chander Shekhar Mr. Sanjay Kumar and Mr. Dileep Shivpuri, Advocates for the Appellant. Mr. Ved Kumar Jain, Mr. Rano Jain and Mr. Pranjal Srivastava, Advocates for the Respondent. ORDER 1. This appeal under Section 260A of the Income Tax Act, 1961 ( Act‟) by the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement of income enclosed therein stated as under.... 5. Therefore, it is apparent that in the above proceedings the Assessee appeared and submitted its return. In the said return, the Assessee noted Original filed vide Ack. No. 3680 Dt. 2/12/2003 Range-9 . The AO, however, did not find any evidence that the original return was filed as claimed by the Assessee. According to the AO, despite several notices thereafter and even after examining the return register, it could not be established that any such return was filed by the Assessee. The AO then proceeded to complete the assessment. 6. One question that was raised by the Assessee in the appeal before the Commissioner of Income Tax (Appeals) [CIT) (A)] was whether the assessment c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order of the ITAT in so far as it rejected the Revenue's appeal being ITA No. 1643/Del/2008. The Revenue has not challenged the impugned order of the ITAT in so far as it has allowed the cross objections of the Assessee and held the assessment order to be void. 11. Consequently, the question that has been urged by the revenue in the present appeal and on which a question has been framed by the Court does not in fact arise in the Revenue's appeal being ITA No. 1643/Del/2008 before the ITAT. It arose in the cross objections being C.O. 151/Del/2009 filed by the Assessee. The revenue has filed an appeal only against the impugned order of the ITAT in so far as it has ordered the deletion of some additions. There is no ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e only the cross objections and allowed them. The failure by the Revenue to challenge the order insofar as it allowed the Assessee‟s cross objection cannot be characterized as a mere mistake‟. 14. In any event, factually the Assessee filed a return pursuant to notice issued under Section 148 of the Act, notwithstanding that it may not have filed a return in the first place under Section 139 of the Act for the AY in question. Once a return is filed notice under Section 143 (2) of the Act to the Assessee is mandatory prior to framing an assessment. The question of framing an assessment ex parte without even issuing a notice under Section 143(2) of the Act did not arise. The mandatory nature of that requirement is settled not o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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