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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 ..... of accommodation entry received by the assessee on the basis of bogus sale of jewellery." 2. The ld counsel for the assessee submitted that the assessee had taken a specific ground before the ld CIT(A), that the proceedings initiated by the AO u/s 158BD is bad in law. The AO initiated proceedings u/s 158BD after a long gap of 3 years from the date of completion of block assessment in the case of M/s Bemco Jewellers P. Ltd which was completed on 29.08.2002 and that the ld CIT(A) had dealt with this issue at Paras 5.1 to 5.7 of his order but he had not specifically adjudicated the same. He argued that as the first appellate authority had not adjudicated this issue, an application under Rule 27 of the ITAT Rules is moved by him and prayed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SC). The ld DR disputed this contention of the assessee. 5. Rival contentions heard. On a careful consideration of rival contention, a perusal of the papers on record, the orders of the authorities below and case laws cited, we hold that as follows: 6. The assessee before the first appellate authority raised the following ground of appeal. Ground No.3: That issuance of notice u/s 158BC/BD dated 10.02.2006 received on 20.02.2006, notice u/s 158 BC r.w.s. 158 BD dated 05.09.2007 received on 06.09.2007 and proceedings there under are barred by limitation in as much as search was conducted in the case of Bemco Jewellers Pvt. Ltd. On 03.08.2000 and assessment order in case of the searched party was passed on 29.08.2002. Ground No.4 : That t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upport the order appealed against on any of the grounds decided against him." 10. The ITAT in the case of Income-tax Officer Vs. Smt. Gurinder Kaur (2006) 102 ITD 189 (Delhi), wherein the co-ordinate held as follows:- "10. Before we proceed further, it is necessary to clear this point, namely, whether the assessee can raise these points before the Tribunal for the first time as a respondent defending the order of the CIT(A) which was based on the only question whether the reasons recorded by the Assessing Officer amounted to reason to believe or reason to suspect. The matter is not res integra. Rule 27 of the Appellate Tribunal Rules, says that the respondent in an appeal can support the order appealed against on any of the grounds decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the CIT(A), the same conclusion would follow namely, that it is open to the assessee to invoke Rule 27 even in respect of this point. As regards the approval of the JCIT under Section 151(1), it is fairly admitted on behalf of the assessee that this was not specifically taken either before the Assessing Officer or before the CIT(A) and, therefore, we hold that Rule 27 may not be strictly speaking available to the assessee. 11. Even de hors Rule 27 of the Appellate Tribunal Rules, it is open to the respondent in an appeal before the Tribunal to raise a new ground in defence of the order appealed against. It has been so held by the Supreme Court in Hukam Chand Mills Ltd. v. CIT of the report it was held that even assuming that Rule 27 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings. It was further held that the ground served as a weapon of defence against the appeal and, if accepted should not place the appellant in a worse than he would have been, had he not appealed. In CIT v. Gilbert and Barkar Mfg. Co. , the Bombay High Court made no distinction between the appellant and respondent in an appeal before the Tribunal and held that both were entitled to raise new points or contentions subject only to the condition firstly that no new facts are required to be brought on record is capable of being disposed of on the facts on record and secondly that an opportunity is given to the other side to meet that point which is allowed to be raised for the first time in the appeal. This was also a case of the respondent. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as indicated that the Revenue has to be vigilant in issuing notice to the third party under Section 158BD, immediately after the completion of assessment of the search person, this Court is of the pinion that a delay ranging between 10 months of 1 ½ years cannot be considered contemporaneous to assessment proceedings. We are of the opinion that notices were not issued in conformity with the requirements of Section 158BD, and were unduly delayed. The appeals of the Revenue accordingly fail and are dismissed." (Emphasis over) 15. In the case of CIT Vs. Alaka Bhandari, 996/2009 and CIT Vs. Ashok Kumar & Songs HUF in ITA 1163/2009, judgement dated 08.01.2015, the Hon'ble Court considered the direction of the Supreme Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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