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TMI Blog2015 (7) TMI 1361X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.2000. Notice u/s 158BD was issued to the assessee on 10.02.2006. Thus the period of more than three years has elapsed since the completion of the assessment in the case of M/s. Bemco Jewellers Pvt. Ltd. As relying on Calcutta Knitwears [2014 (4) TMI 33 - SUPREME COURT] we hold that the period of above three years cannot be considered as immediate or immediately proximate in point of time to the completion of the block assessment u/s 158BD. In consequently we hold that the assessment itself is bad in law. Thus this application under Rule 27 of the ITAT Rules is allowed. Appeal of the revenue is dismissed. - IT(SS)A No. 28/Del/2012 - - - Dated:- 8-7-2015 - SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI C.M. GARG, JUDICIAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the ld CIT(A) and whereas the assessee seeks to dispute the order of the first appellate authority on this issue. He alternatively submits that as the first appellate authority has not adjudicated this matter and hence it cannot be presumed that the decision on this issue is against the assessee. 4. In reply the ld counsel for the assessee relied on the decision of the Tribunal in the case of ITO Vs. Smt. Gurinder Kaur (2006) 102 ITD 189 (Delhi) for the proposition that the scope of the Rule 27 permits the assessee to file an application when the assessee had agitated an issue before the ld CIT(A) and also the proposition that if the appellate authority has not adjudicated the issue, then it can be presumed that the issue had been de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact itself renders the said notices as well as the proceedings there under invalid and void. 7. The ld CIT(A) had discussed these grounds at Page 5.4 of the order, which reads as follows:- 5.4. The assessee has challenged the block assessment proceedings on the ground that the AO had initiated proceedings without any inquiry and without any proper justification. It has also submitted that the assessee already declared the transaction of sale of jewellery in the return of income and the AO was not justified to initiate the proceedings u/s 158BD and the assessee also relied on various case laws in support of the claim of the assessee. It is submitted that there is no proper satisfaction for initiating proceedings u/s 158BD. It is als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in ground No. 2 before the CIT(A) though this ground is not so categorical as the Ld. Counsel for the assessee wants us to read. Even so, such ground can be inferred from the fact that the assessee has been repeatedly asking for the reasons recorded which were not supplied to her. Even before the Tribunal right from September, 2004, the assessee has been requesting for production of the department's records obviously calling upon the department to show that reasons for reopening have been recorded, but due to some difficulty or the other, the department has not been able to produce the records. The CIT(A) has not recorded any finding on the question whether the reasons were recorded or not, but having regard to the judgment of the Hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is necessary to state that Rules 12 and 27 are not exhaustive and the powers of the Appellate Tribunal. The rules are merely procedural in character and do not, in any way, circumscribe or control the power of the Tribunal under Section 33(4) of the Act. It is significant to note that in the case before the Supreme Court, the department which was the respondent sought to raise a new plea in defence of the order appealed against. Earlier, in New India Life Assurance Co. Ltd. v. CIT , the Bombay High Court while pointing out the difference between an appellant and respondent before the appellate court, observed at page 55 that the respondent may support the decision of the trial court, not only on the ground contained in the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ints or contentions can be raised provided they did not involve investigation into facts (as contrasted with the record) and that an opportunity is given to the other side to meet the contentions. Applying these principles to the present case, we overrule the preliminary objection of the Ld. Sr. DR and permit the assessee to raise the new points before us as a respondent. 11. No contrary decision is brought to our notice by the ld DR. 12. Applying the proposition laid down herein to the fact of this case, we admit this application under Rule 27 of the ITAT Rules as the assessee has raised a ground before the ld CIT(A) and the ld CIT(A) discussed the issue but had not given a decision on the same. 13. On merits we find that the blo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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