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TMI Blog2021 (3) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter and failure on Assessing Officer s part in such a situation leads to the assessment in question be declared a nullity. See M/S. MEHTA EMPORIUM JEWELLERS [ 2018 (6) TMI 898 - ITAT MUMBAI] , SHRI JAI SHIV SHANKAR TRADERS PVT. LTD. [ 2015 (10) TMI 1765 - DELHI HIGH COURT] , M/S SAPTHAGIRI FINANCE INVESTMENTS [ 2012 (8) TMI 523 - MADRAS HIGH COURT] We take into account all these facts and circumstances and hold that these eleven assessments framed on 30.12.2011 are invalid ones. The same stand quashed therefore. - Decided in favour of assessee. - ITA No. 352 to 355/Hyd/16, 397 & 398/Hyd/16, 356 to 358/Hyd/16, 395 & 396/H/16 - - - Dated:- 15-3-2021 - Shri S.S. Godara, Judicial Member And Shri L.P. Sahu, Accountant Member For the Assessee : Shri P.Murali Mohana Rao, AR For the Revenue : Shri Rohit Muzumdar, DR ORDER PER S.S. GODARA, JM : The instant batch of eleven appeals pertains to two assessees S/Shri Vemula Narasimha Rao and Vemula Laxmi Narayana. The former assessee s six appeals ITA 352 to 355 and 397 to 398/H/2016 for AYs 2004-05 - 2009-10 arise from CIT(A)-5, Hyderabad s common order dated 28.01.2016 passed in case nos. 0192, 0191, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To: The Sr. Authorised Representative 1 B Bench, ITAT, Hyderabad. Sir/Madam, Sub: Appellate proceedings in the case of Shri Vemula Narasimha Rao (PAN: ADPPV9370G) and Smt. Vemula Lakshmi Narayanaa Rao (PAN: ADIPV7622C) AYs 2004-05 to 2009-10 Report Furnishing of Reg. Ref: Letter of Sr.AR-1, Bench B, ITAT, Hyderabad, in F.No.Sr.AR/Hyd/VNR NLR/Report/2020-21 dated 21.122021. 1. Please refer to the above calling for categorical report on whether notices u/s 143(2) were issued and served in the cases of Shri Vemula Narasimha Rao (PAN: ADPPV9370G) and Smt. Vemula Lakshmi Narayana Rao (PAN: ADIPV7622C) for the AYs 2004-05 to 2009-10. 2. On verification of case records of all the assessment years, it is submitted that 143(2) notices are not available and the status of issuance of notices is not known. However, the assessees did not file returns of income in response to notices issued u/s 148. 3. The following case records are forwarded herewith for necessary action. Sl. No Name of the assessee Description 1. Vemula Narasimha Rao ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal and the Tribunal can grant relief on an item of income which was never disputed earlier. Even in the decision of NTPC it was held that Question of law can be raised afresh before ITAT if the relevant facts are on record, however the appellant has to satisfy that the ground raised was bonafide and the same could not have been raised earlier for good reasons. The relevant extract is as under:- 6. In the case of Jute Corpn. of India Ltd. v. CIT [19917 187 ITR 688, this Court, while dealing with the powers of the MC, observed that an appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. There is no good reason to justify curtailment of the power of the MC in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the ITO. This Court further observed that there may be several factors justifying the raisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the other side. If such question is raised at the earliest opportunity, the other side can lead evidence which it may not be able to do if such a question is raised for the first time before the appellate authority. The relevant extract is as under- 4. It may also be mentioned that the assessee raised plea of the assessment being barred by limitation on the ground that notice under section 143(2) of the Act was not served within the stipulated time. The Tribunal held that the assessee did not raise the plea earlier in spite of opportunity being available and on a question of fact, such a plea could not be allowed to be raised for the first time before the Tribunal. Reference was made to the judgments of the Hon'ble Supreme Court in National Thermal Power Co. Ltd. v. CIT [19981 229 ITR 383 and Jute Corporation of India Ltd. v. CIT [19911 187 ITR 688/53 Taxman 85. 5. The appeal was admitted by this Court to consider the following substantial questions of law claimed by the assessee: (i) Whether in facts and circumstances of the case the Tribunal had fallen in error in disallowing the appellant from raising an additional issue, contrary to ratio of the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that too through additional ground, after participating in proceedings, contesting issue on merits but not raising any objection on invalidity or illegality or irregularity of service of said notice by affixture either before AO or the CIT(A) In the case of Begum Noor Banu [1993] 69 Taxman 565 (Andhra Pradesh) it was held that tribunal has no jurisdiction to grant relief on consideration of an additional ground raised before it by assessee for first time when the ground was related to an item of assessment which was not disputed at any earlier stage. Finally, it may also be appreciated that when the issue was not raised before the AO or the CIT(A) and the assessee was given due opportunity to file all the evidences before the lower authorities, no prejudice has been caused to him. The Hon'ble ITAT may thus peruse the above submission and may not admit the additional grounds of appeal by dismissing the same. Sd/- [R.M. Muzumdar] Sr. AR-l, ITAT, B Bench, Hyderabad. 3. We have given our thoughtful consideration to rival pleadings in favour and against assessees petitions seeking admission of identical additional ground that since the Assessing offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated notice(s) appear to have been misplaced unintentionally. We see no reason to accept Revenue s instant stand. Even a bare perusal of the assessment records nowhere indicates that sec.143(2) notices had been issued to these assessees. Coupled with this, there is no dispute that as per these case records, no notice had been issued and also the Assessing officer s corresponding assessments do not reveal that he had taken recourse to sec. 143(2) process at all. All these facts corroborate and support the assessees stand that the impugned assessments have been framed without issue of sec.143(2) notices ad therefore not sustainable in law as settled in Hotel Blue Moon case (supra). 3.3. Mr. Muzumdar s next argument is that these assesses have not filed any return in response to Assessing officer s sec.148 notice(s) issued to them in all these assessment years. The same goes against the records since the assessment order(s) in all these cases take note of the assessee s letter(s) dated 4.1.2010 that the original returns be treated as those filed in response to re-opening mechanism. 3.4. The following judicial precedents hold that an assessee s letter seeking to treat the origi ..... 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