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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 ..... uestion of law: "(1) Whether on the facts and circumstances o the case, the learned Income Tax Appellate Tribunal was right and justified in allowing the assessee to raise ground regarding validity of notice under Section 148 of the Act before it for the first time as the said ground was neither raised before the Assessing officer nor before the CIT(A) ? (2)Whether on the facts and circumstances of the case, the learned Income Tax Appellate Tribunal was right and justified in holding that the reassessment proceedings are bad in law as the reasons recorded while issuing notice under Section 148 have no link with the facts not disclosed by the assessee, which is very much incorrect and perverse and also contrary to the law laid down by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the case the ITAT was right and justified in law in deleting the disallowance of Rs. 2,67,070/- inspite of the fact that the said cash payments were made in unavoidable circumstances but were not falling with the circumstances provided under Rule 6DD of the Income Tax Act Rules." 3. Counsel for the appellant contended that tribunal in para no.12 observed as under:- "We have perused the facts of the case. There is no dispute that the assesee has declared all the advances in the impugned year and as stated by the assessee that the work has been completed in the following year and the advance so received has been declared as income in the following year. The required documents of the following year are on record where the assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unds have been pointed out by the AO. The advances so received cannot be treated as Cash Credit u/s 68 of the Act only on the basis of statement of three persons who have also confirmed to have given the advances. The explanation of the assessee appears to be satisfactory with regard to the persons who have given the advances are uneducated and have not come forward to make the statement or have been given defective statement as in the case of three persons mentioned hereinbefore. In the circumstances and facts of the case, the advances received by the assessee which have been declared as income in the following year, cannot be taxed in the impugned year for the reasons mentioned hereinbefore. Hence the orders of the authorities below on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Market & Investment Ltd. (2005) 198 CTR (MP) 680: (2005) 275 ITR 260 (MP) held that question of validity of notice may not be allowed to be raised for the first time in appeal. Subsequent legislative amendment adding s.292BB supports this principle. The question has, thus, to be answered against the assessee. What is clear from the facts stated above that the process server with the tax assistant went to the property which was mentioned in the notice but as the respondent-assessee could not be found at the said address, they took steps and went to the new address which was made available. The respondent-assessee does not dispute that he was residing at the said address. There the notice was served by the affixation. The assessee thereaft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the disallowance and wrongly allowed the appeal preferred by the assessee ignoring the submissions made by the department in this regard.
7. In view of the above, the issue is answered in favour of the department. The matter is remitted back to the tribunal to decide the same afresh in accordance with law. The order of tribunal is set aside."
3.2 Mr. Kasliwal, counsel for the respondent states that he has no instructions in the matter.
4. Since the appeal is very old, in view of statement of learned counsel for the appellant, we accept his statement and in view of the above decision of this Court, the issue is decided in favour of the Department and against the Assessee.
The appeal accordingly stands disposed of. X X X X Extracts X X X X X X X X Extracts X X X X
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