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TMI Blog2017 (5) TMI 1781X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and should have issued notice well in advance, as they knew that the limitation period for service would expire on 31.10.2001. Had care been taken this entire exercise and appeal would have been avoided. In view of the facts stated above question of law is answered in favour of Revenue and against the respondent. - D.B. Income Tax Appeal No. 175/2009 - - - Dated:- 24-5-2017 - HON'BLE MR. JUSTICE K.S. JHAVERI AND HON'BLE DR. JUSTICE VIRENDRA KUMAR MATHUR For the Appellant : Mr. Anuroop Singhi with Mr. Aditya Vijay. For the Respondent : Mr. Anant Kasliwal. ORDER 1. By way of this appeal, the appellant has challenged the judgment of the Tribunal whereby the Tribunal has partly allowed the appeal of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal 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 was served within the limitation prescribed by the Act? 2. Whether under the facts and circumstances of the case the ITAT was right and justified in law in deleting the addition of ₹ 50,00,000/- made u/s 68 of the Act which was introduced in the grab of bogus advances received from the customers and surrendered by the A/R of the assessee vide letter dt. 17.3.1999 (exhibit-2), on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Pullangode Rubber Produce Co. Vs. State of Kerala, 91 ITR 18. The assessee has already declared the said amount as income in the following year and therefore, the assessee cannot be taxed in the impugned year. There is no findings by the AO that the assessee has earned the said amount from undisclosed sources and no material has been brought on record to this effect. The assessee has receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 raised at the earliest opportunity, the orther 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. Of course, there can be no total bar on such question being allowed, if interest of justice so requires. In National Thermal s case (supra) it has not been laid down that in every case a question of fact can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 31.10.2001. Had care been taken this entire exercise and appeal would have been avoided. In view of the facts stated above question of law is answered in favour of Revenue and against the respondent. The matter is remitted back to the Tribunal to decided on merits. 5. We have heard counsel for the appellant. 6. In view of the submissions made by the counsel for the appellant, the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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