TaxTMI 
TaxTMI 
2011 (8) TMI 450
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....ncome declared in the return of income for the block period was eligible for deduction u/s.80HHC of the Act. According to the order of assessment a notice u/s.143(2)/142(1) of the Act was issued on 15.10.2000. The correct date of issue of notice u/s.143(2) of the Act according to the Asssessee was 15.10.2001 and there was a typographical error in mentioning the said date in the order of assessment as 15.10.2000. By an order dated 31.1.2002, the AO passed an order of assessment u/s.158BC of the Act, determining the undisclosed income of the Assessee for the Block period at Rs.4,71,57,325/. 3. Against the said order the Assessee preferred appeal before CIT(A). Before CIT(A), the Assessee raised a ground challenging the validity of the order of assessment on the ground that the notice u/s.143(2) was issued beyond the period of one year from the end of the month in which the return of income was filed by the Assessee and therefore the order assessment should be held to be invalid. The CIT(A), held that the said objection was not raised before AO and the Assessee participated in the proceedings before AO, therefore the ground cannot be raised before the CIT(A) irrespective of ....
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....****** Please refer to the above. The above case has been adjourned number of times and the case has been fixed for last hearing on 29/06/2009. the counsel of the appellant put forward a new plea that notice u/s. 143(2) has been issued beyond one year i.e. on 15/10/2001 and therefore the assessment is time barred. On going through the assessment order I find that a notice is stated to be issued on 15/10/2000. Please verify the records and send me a Xerox copy of the notice alongwith order sheet notings to the undersigned within 10 days from the receipt of this letter. As the Department has got a very good case in this appeal. Take the matter seriously and reply the same in advance. Yours faithfully Sd/- (P.S. CHELLAPHAN) CIT (DR), ITAT IV, G-BENCH, MUMBAI Copy : THE CIT (CENTRA)-I, MUMBAI CIT (DR), ITAT IV, G-BENCH, MUMBAI" 9. Letter dated 25/6/09 written by ACIT, Cen.Cir.11, Mumbai to CIT, DR, ITAT "G" Bench reads as under:- "No. ACIT/CC-11/Simoni Gems/2009-10 Dated 25/06/2009 To, Commissioner of Income-tax (DR) ITAT "G" Bench Mumbai. Sir, &nb....
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....0 have been issued and served. If the actual date of notice is 15/10/2000 the department's case survives. If the actual date is 15/10/2001, the department's case will most likely be dismissed on limitation matter alone. You are therefore requested to look into this matter urgently, and direct the AO to send the Xerox copies of the entire order sheet nothings or preferably the entire assessment folder. This may be treated as the most urgent matter as this case, as a last chance, has been fixed for hearing tomorrow itself and therefore the reply/records are needed here today only. Encl: As above. Yours faithfully Sd/- (Pragati Kumar) CIT DR ITAT-II "G" Bench Copy to: 1. The ACIT Central Circle 11, Mumbai for information and immediate action. 2. The CCIT - VI, Mumbai for information." 11. On 18/8/09 the Tribunal has directed the ld. D.R to produce the assessment records for verifying the date of issue of notice under section 143(2). Till date this has not been complied with. 12. On this factual matrix and in view of the letter written by ACIT, Cen....
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....ed the appeal of the Revenue, without going into any other issues raised by the Revenue in its appeal. The result of such dismissal of the revenue's appeal was that the order of the AO as modified by the order of CIT(A) would still hold good and the order of assessment was not annulled by the Tribunal. In other words the plea raised by the Assessee as a respondent was considered only to the extent of sustaining the CIT(A)'s order as required by Rule 27 of the Tribunal Rules. 8. The hearing concluded on 2/3/2010. The order of the Tribunal was pronounced on 23.3.2010 in open Court. The notice giving the date of pronouncement of the order was duly displayed in the notice board of the Tribunal, as is the practice followed by the Tribunal. 9. The Departmental Representative (CIT), ITAT, C-Bench, Mumbai, Shri Ajit Kumar Sinha, vide letter dated 24-03-2010 and another letter dated 25- 03-2010, which is in continuation of the letter dated 24th March 2010, prayed for recalling of the order dated 23-03-2010 and that the appeal should be adjudicated afresh after considering the written submissions of the Department. The above letters were addressed to the Hon'ble Members w....
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....ritten submission dated 4.3.2010 was given to the D.R. only on 9.3.2010. f) On 23.3.2010, the departmental representative sought to file written submissions on the new issue raised by the Assessee as well as on merits of the appeal but the same was not accepted by the Bench Clerk. Thereupon, the Departmental Representative met the Hon'ble Presiding Officer of the Bench which heard the matter in chambers and requested him to take the written submissions on record. The Departmental representative came to know that the order has already been pronounced and therefore the written submission of the D.R. could not be taken on record. 11. Thereafter the letter contains the following allegations against the members: a) The Bench has passed the order in undue hurry. b) The order of the Tribunal without considering the submissions of the Department is unjustified. c) On 2.3.2010, the Bench did not fix any time limit within which the written submisisons were to be filed by the Department. The Bench should have therefore waited for the written submissions of the Department. 12. Thereafter it has been stated in the letter that the D.R. ....
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....nd the actual date of issue of said notice is 15.10.2001. In this regard the Assessee's Counsel had produced the original notice before the Tribunal in the course of hearing. This fact has also been confirmed by the AO by his letter dated 25.06.2009 addressed to the CIT(DR) reproduced in para 9 at page 4 of the Tribunal's order. It was also pointed out that apart from alleging that this issue was raised by the assessee in appeal and at later stage, the CIT(DR) in his submission dated 19.03.10 has also not been able to positively show that any notice had been issued by the AO under section 143(2) before 31.07.2001. d) The plea of the D.R. that copies of the two decisions of the Bombay High Court in B.R. Bamasi v. CIT 83 ITR 223 and CIT v. Gilbert and Barker Manufacturing Co., USA 111 ITR 529 were not handed over by the Assessee's Counsel to him cannot be considered as a genuine grievance. Decisions referred to in the course of hearing are reproduced in Income Tax Reports and it is not a rule that photocopies of the reported decisions relied upon by a party need to be filed before the Bench and a copy also handed over to the other side and, hence, this grievance has no basi....
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....Kumar Sinha, filed the following letter dated 05-07-2010 which is extracted below for ready reference: "From, Dated....5/7/10. Ajit Kumar Sinha CIT (DR), 'C' Bench, ITAT, Mumbai. To, The Hon'ble Members 'G' Bench Income Tax Appellate Tribunal Mumbai. Sirs, Sub:- Written submissions in the case of Simoni Gems, in ITA(SS) 747/m/03 Case heard on 02/03/2010-MA 240/M/10 - Regarding. Your kind reference is invited to my letters dated 24/04/2010 and 25/04/2010 through which I had requested the Hon'ble Bench to consider the written submissions prepared by me on behalf of the Department, while adjudicating the Department's appeal in above IT SS) 747/M/03. The Hon'ble Bench has been very kind to consider my request as it has been converted into an MA. 2. In this regard it is humbly clarified that, on my part, there never was any intention to hurt the sentiments of Hon'ble Members while making the said request. The only purpose was to make a strong request to the Hon'ble Bench so that the written submissions are considered by the Bench. In this process, h....
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....r material was required to decide the prelimnary issue. The facts available on record amply demonstrate that notice u/s.143(2) in this case was not issued within 12 months from the date of filing of the block return of income. This position is admitted in writing by the Assessing Officer. The correspondence between the D.R. and the AO is brought out in the impugned Tribunal order dated 23-03-2010. On this factual position, the statement of the D.R. in the last line of para 2 of petition dated 24-03-2010 is contrary to facts. It is totally wrong to state that the Bench had not fixed any time limit for submission of written submissions. In fact, at para 6 on page 3 of the Tribunal order, the direction of the Bench that written submission should be filed within one week is recorded. 19. At para 3 of this petition, the D.R. has stated that the Bench had passed the order in undue hurry. More than 20 days had elapsed from the date of hearing and the Bench waited for about 3 weeks for the Department to file written submissions, though only one week was granted at the time of hearing. The learned CIT(A)/D.R. probably expects the Bench to enquire from him as to whether written sub....
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....n the letter dated 25-03-2010, which is in continuation of the letter dated 24-03-2010, the DR states that the order of the Tribunal would be an ex parte order. The DR has not understood what is an ex parte order. When the learned Departmental Representative is heard and also given time to file written submissions, how can the order be an ex-parte. The D.R again refers to the time limit for giving written submissions as well as his view that the assessee has raised a new issue. Here, we find that the D.R. is misleading and making false statement before the Bench on the facts of the case. The assessee has been consistently raising this issue under Rule 27 in all the earlier hearings. As per the record before us, for the first time on 12-05- 2009 the assessee raised the issue before the Bench and thereafter on 29- 06-2009, 18-08-2009 and 20-10-2009, the Asssessee had repeated the very same arguments. The Department sought time to answer this issue. This aspect is confirmed by the correspondence between the then D.R. and the AO. The Revenue had sought adjournments on those occasions for verifying records and also to meet the arguments and the Bench granted the adjournments. The presen....
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....e assessment, the same has to be gone into at the outset. When such issues are raised, the Bench is duty bound to hear the same and it is unfortunate that the D.R. does not understand such basic practice in proceedings before Tribunal. The jurisdictional issue have to be addressed first and then only merits. The learned Departmental Representative wants the bench to hear him on merits, though from the record, it is obvious that the assessment is bad in law as the Assessing Officer did not follow the mandate laid down in Sec.143(2) of the Act. 24. We now deal with the written submissions dated 19.3.2010 filed along with the letter dated 24.3.2010 wherein the D.R. has again suppressed facts and attempted to mislead the Bench. 25. The D.R. in para-2 of his written submission again sought to submit that plea with regard to the validity of the order of assessment on the ground that the notice u/s.143(2) was issued beyond the period of one year from the end of the month in which the return of income was filed by the Assessee, was a new plea raised by the Assessee for the first time before the Tribunal only in May, 2009. We have already seen that this allegation is abs....
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....basis of the assesses own admission, they cannot be questioned in appeal. By analogy, where the appellant has voluntarily complied with provisions and procedures of the Act without any protest, he loses the right to take up the issue in appeal. Accordingly, this ground of appeal fails and is dismissed." 27. In the light of the above order of the CIT(A), it is not open to the D.R. to submit that the issue sought to be raised by the Assessee was a new issue. In para-2.4.3 and 2.4.4 of the written submission, the D.R. has submitted that the ground regarding validity of the order of assessment on the ground that the notice u/s.143(2) was issued beyond the period of one year from the end of the month in which the return of income was filed by the Assessee was not raised by the Assessee before CIT(A). In our opinion, Ground No.1 raised by the Assessee before CIT(A) was broad enough to encompass the objection regarding validity of the order of assessment on the ground that the notice u/s.143(2) was issued beyond the period of one year from the end of the month in which the return of income was filed by the Assessee. Even assuming that there was no specific ground raised by the A....
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....th in which the return of income was filed by the Assessee is a matter of record. In fact, the AO himself has admitted that such notice was not served within the time allowed in law. The issue, again at the cost of repetition, is not a new issue as presumed by the D.R. as the issue has been examined and adjudicated by the CIT(A). It is therefore futile on the part of the D.R. to make submissions on erroneous presumptions and assumptions. 31. The D.R., in our humble opinion, was unable to understand the judgment of the Hon'ble Bombay High Court in the case of B.R. Bamasi v.CIT (83 ITR 233). When the Hon'ble Court in its order clearly states that, the assessee's counsel can raise an oral argument, the D.R. wrongly harped on the point that no written grounds have been taken by the assessee under Rule 27. As per the Hon'ble Jurisdictional High Court, no written application is required to be filed when rule 21 is involved. In this case, a specific argument on the issue of validity of assessment was raised before the CIT(A) by way of ground no. 1 and 2 and the ld. CIT(A) at pages 3 and 4 of his order dealt with the issue and dismissed the grounds of the assessee. This very grou....
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.... ld. Sr. counsel states that he is relying on Rule 27 for the limited purpose of dismissal of the Revenue's appeal and not seeking any further relief in view of the observations of the jurisdictional High Court in the case of B.R. Bamasi (supra), the D.R. was unable to understand this submission and goes on to write that the acceptance of the argument of the Sr. counsel would result in cancellation of the assessment itself and the return of income filed by the assessee will become nullity. This submission is contrary to the order of the Tribunal where it is held that the order of the Assessing Officer as confirmed by the learned CIT(A), stands and the only effect of invoking Rule 27, is the dismissal of the Revenue appeal. The assessee, in fact, got no further relief. When it is not even the argument of the assesse's counsel, we do not know from where the D.R. gathered such an impression. It is unfortunate that such untrue statements are made in these written submissions. 34. Nowhere in the written submissions nor in the petitions dated 24-03- 2010 and 25-03-2010, the D.R. asserts that the notice u/s.143(2) was served within the time limit provided in the proviso to sec. ....