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TMI Blog2022 (9) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... granted full relief to the assessee. Feeling aggrieved by that order, the revenue had filed an appeal before this Court. Once there is no dispute with regard to the question that issuance of notice under Section 148 of the Act is a jurisdictional issue and ITAT had granted full relief to the assessee, we are persuaded to accept the submission made by Shri.Shankar that assessee did not challenge that finding, because, it was unnecessary and would only increase the litigation. In our considered view the matter requires reconsideration in the hands of ITAT on this aspect. Whether the transfer of assets ought to have been considered under Sections 45(1) or 45(4)? - In view of law laid in SHREE CHAMUNDI MOPEDS LTD. v. CHURCH OF SOUTH IND ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued under section 148 of the Act is valid in law without obtaining the sanction as per provisions of section 151(1) of the Act on the facts and circumstances of the case? 3. Whether the mandatory conditions to assume jurisdiction under section 147 of the Act exist for issue of notice under section 148 of the Act on the facts and circumstances of the case? 4. Whether the reasons recorded for issue of notice under section 148 of the Act without making any allegation that the appellant has failed to disclose fully and truly all material facts necessary for the assessment is valid in law on the facts and circumstances of the case? 5. Whether the assessment reopened based on the audit objection is valid in law on the facts and cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing officer was not correct on the facts and circumstances of the case? 2. Brief facts of the case are, Assessee filed its returns for the Assessment Year 1995-96. An order of assessment was passed under Section 143(3) of the Income Tax Act, 1961 (for short Act ). Subsequently, a notice under Section 148 was issued and reassessment order was passed. Assessee unsuccessfully challenged the same before the CIT(A) (Commissioner of Income Tax (Appeals) and subsequently ITA No.1062/Bang/2004 before the ITAT (Income Tax Appellate Tribunal, Bangalore), Bangalore. By its order dated January 6th, 2006 the ITAT partly allowed the appeal and granted the relief sought for, on the merits of the case. So far as the question whether the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down in INDIAN EASTERN NEWSPAPER SOCIETY v. COMMISSIONER OF INCOME-TAX [1979] 119 ITR 996 (SC) para 20. 5. He submitted that the issue with regard to Questions No.4, 7, 8 and 9 are on the merits of the matter on the aspect whether the transfer of assets ought to have been considered under Sections 45(1) or 45(4) of the Act. He submitted that in the first round of litigation, ITAT had granted relief to the appellant. However, by the impugned order the ITAT has recorded findings against assessee and dismissed the appeal. He urged that jurisdictional issue with regard to issuance of notice under Section 148 of the Act goes to the root of the matter and the Tribunal has recorded an adverse finding and the same requires reconsidera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital gains. Shri. Shankar submitted that in the first round of litigation the ITAT has not considered this aspect and assessee had filed a miscellaneous petition and the same was allowed in favour of the assessee. The revenue challenged the same in ITA No.195/2006 and this Court vide order dated August 6th, 2012 held that since the main order had been set aside and matter was remanded, the ITAT shall consider the valuation aspect in the fresh order to be passed after the remand. 10. In substance, he contended that computation of capital gains though directed to be considered by this Court, the ITAT has not considered in second round of litigation. 11. We have carefully considered the rival contentions and perused the records. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned, Shri. Aravind s contention is that with regard to transactions which were concluded whilst the firm was partnership in nature, the notice has to be issued in the name of partnership firm. But, undisputed fact is, firm has been converted into a Part IX company. Referring to Section 188 of the Act it was urged by Shri.Aravind that the notice has been rightly issued to the Partnership firm. Since we are persuaded to remand the matter, we do not wish to consider this aspect on merits and keep this contention open. 17. Question No.11 is with regard to valuation. In the impugned order the Tribunal has not recorded any finding on this aspect. 18. In view of the above, the following order: ORDER (1) Appeal is allowed. (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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