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TMI Blog2017 (5) TMI 1780X X X X Extracts X X X X X X X X Extracts X X X X ..... LE MR. JUSTICE K.S. JHAVERI AND HON'BLE MR. JUSTICE VIJAY KUMAR VYAS For the Appellant : Mr. Anuroop Singhi with Mr. Aditya Vijay ORDER 1. By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby Tribunal has allowed the appeal preferred by the assessee and reversing the view taken by the AO as well as CIT(A). 2. This court while admitting the appeal on 21.12.2011 framed following substantial question of law:- "1. Whether under the facts and circumstances of the case the ITAT was right and justified in law in holding the assessment as null and void despite the fact that notice u/s 143(2) was issued in time on 6.8.1997 and there were circumstantial evidences to prove that the said notice wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... twice. The statement of three persons that they have paid lesser advances will not lead to a conclusion that the assessee has concealed the income of ₹ 50.00 lacs as has been held by the authorities below. The ld. AR has pointed out the letter of surrender dt. 17.3.99 (PB 140) which has been surrendered by the tax consultant. The said letter of surrender has not been signed by the assessee. In the case of surrender where the tax liability arises on the assessee, the Department cannot admit such surrenders signed by the Consultant and that too in the absence of any specific power of attorney given to such Consultants. Moreover, the admissions made cannot be held to be conclusive in view of Hon'ble Apex Court decision in the case of Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012) 204 Taxman 112 (Delhi) and judgment of Punjab & Haryana High Court in Aravali Engineers (P) Ltd. vs. Commissioner of Income Tax & Anr. (2011) 335 ITR 508 relied upon by the department wherein it has been held as under:- "As regards question (I), we do not find any reason to take a view different from the view taken by the Tribunal. No doubt that an appellate authority can allow a question to be raise for the first time even if such a question was not raised at a lower forum but the discretion to do so has to be exercised in the interest of justice in the facts and circumstances and not mechanically. Normally a question of fact may not be allowed to be raised for the first time as it may prejudice the other side. If such question is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cific ground regarding service of notice u/s 143(2) or or before 31.10.2001 was taken. The said ground was taken belatedly by way of an additional ground. The Tribunal in the impugned order has commented and stated that in the affidavit/service report submitted by the Inspector, the date of the notice was mentioned as 30.10.2001. This is clearly a clerical or typographical error as the date on the notice is 31.10.2001 and it is clearly reflected in Annexure A. It is not the case of either party that the notice was issued on 30.10.2001. Of course, there cannot be any doubt that department should have taken precaution and should have issued notice well in advance, as they knew that the limitation period for service would expire on 31.10.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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