TaxTMI 
TaxTMI 
2010 (11) TMI 96
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....8. The appeal was admitted by a Bench of this Court vide order dated 5-9-2007 on the following substantial questions of law: (a) "Whether the Income Tax Appellate Tribunal is justified by expressing an opinion that the assessee appellant was not entitled under law to raise a contention that the notice issued by the assessing officer under Section 143(2) was impermissible because of the proviso attached to the said provision on the ground that such an issue was not raised on the first round of appeal before the CIT(A) was barred by doctrine of merger (wrongly typed as 'and the doctrine of CIT(A)?" (b) Whether in the facts and circumstances of the case it can be held that the order passed by the assessing officer on the first occasion h....
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.... and since statutory notice was not issued within a period of one year as laid down in proviso to Section 143(2) of the Act, the block assessments made by the Assessing Officer were barred by limitation. The Commissioner of Income Tax further held that since entire block assessment has been set aside and has been re-framed from the return stage and since the Commissioner of Income Tax (Appeals) has not adjudicated any of the grounds, therefore, the appellant has right to raise fresh or additional ground when the assessment has been reframed afresh. Accordingly, it was held that it is permissible for the assessee to raise an additional ground with regard to validity of the notice under Section 143(2) of the Act. 4. Being aggrieved by the ....
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....istant Commissioner Income Tax and another vs. M/s. Hotel Blue Moon, (2010)3 SCC 259 contended that issuance of notice under Section 143(2) of the Act within the prescribed time for the purpose of block assessment under Chapter XIV-B of the Act is mandatory. It was submitted that the Income Tax Appellate Tribunal was not justified in holding that it was impermissible for the appellant to raise additional ground with regard to validity of notice under Section 143(2) of the Act. Learned Senior Counsel further contended that a question of law can be raised at any stage. Learned Senior Counsel has also assailed the finding recorded by the ITAT in para 16 of the order to the effect that order of assessment dated 26-02-1999 stood merged with the ....
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....at it was not permissible for the petitioner to raise a contention with regard to validity of notice under Section 143(2) of the Act. It was contended by the learned counsel for revenue that issue with regard to validity of notice was impliedly decided. In support of his contention, learned counsel has referred to the decisions reported in CIT vs. Indian Auto Stores, [1981] 129 ITR 554 and CIT vs. City Palayacot Co., [1980] 122 ITR 430. 7. As stated supra, an order of assessment was passed on 26.02.1999. The aforesaid order of assessment was set aside by the Commissioner of Income Tax (Appeals) vide order dated 19.02.2009. By order dated 19.02.2009, the Commissioner of Income Tax (appeals) directed the Assessing Officer to examine the ca....
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....raised for the first time. In this connection, refer-ence may be made to decision of Supreme Court in the case of Jute Corporation of India Ltd. V. CIT, [1990] 88 CTR (SC) 66 as well as in the case of National Thermal Power Company Ltd. V. Commissioner of Income Tax [1998] 229 ITR 383 (SC) wherein it has been held that a new plea can be permitted to raised, provided the appellate authority is satisfied that ground raised was bonafide. It has further been held that the appellate authority should exercise discretion in permitting or not permitting the assessee to raise an additional ground in accordance with law and reason. From perusal of the paragraphs 8 to 8.6 of the order passed by the Commissioner of Income Tax (Appeals) dated 26.09.2003....
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....d 19.02.2001. was an open remand or partial remand. Full Bnech of this case in the case of Commissioner of Income Tax v. K.L.Rajput (supra) has held that order of the Income Tax Officer merges with the appellate order only to the extent it was considered and decided by the appellate authority but the matter which is not covered by the appellate order of the appellate authority is left untouched and to that extent assessment order survives. From perusal of the order of remand dated 19.02.2001, we find that order passed by the Assessing Officer in the first instance i.e. the order dated 26.02.1999 was set aside. Once an order is set aside, it is wiped of from its existence. [See: Shree Chamundi Mopeds Ltd. V. Church of South India Trust Assoc....