TaxTMI 
TaxTMI 
2017 (2) TMI 323
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....ces of the case & law on the subject, the CIT(A) has wrongly held that the proceeding u/s 148 had been validly initiated. (4) On the facts and circumstances of the case and law on the subject, the CIT(A) has wrongly disallowed our claim to raise additional ground of appeal regarding the non-issue of the notice u/s 143(2) before making the assessment. 2.1 The ld. Counsel for the assessee has raised an additional ground of appeal as under:- The learned AO has wrongfully made the addition on account of gift received as under:- a. Santokben P. Patel Rs.8,28,000/- b. Santokben P. Patel (ornament) Rs.2,12,826/- c. Amrutlal P. Patel Rs.9,00,000/- Rs.19,40,826/- 3. The ld. Counsel for the assessee contends that this is second round of appeal. The ITAT, Ahmedabad Bench vide order dated 22.02.2011 in ITA No.3740/Ahd/2008 had set aside the matter to ld. CIT(A) by following observations:- "4.1 Considering the totality of the facts and circumstances of the case, we are of the view that it will meet the ends of justice, if the impugned order of Learned Commissioner of Income Tax(Appeals) is set aside and he be directed to....
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....refore the Ground No.2 regarding reopening of assessment was correctly dismissed by my predecessor vide his order dtd. 25- 07-2008. The other grounds of appeal have been dealt in detail and adjudicated by CIT(A) in his order dtd. 25-07-2008 and these are not required to be adjudicated again as no fresh facts have been submitted before me. 4.5. During the present appellate proceedings before me, the appellant raised an additional ground of appeal which had not been raised either before the ITAT or the CIT(A). The appellant submitted that notice u/s. 143(2) had not been issued by the AO. It is seen that the appellant had never challenged before the AO or the CIT(A) or the ITAT that notice u/s. 143(2) had not been issued to him within the stipulated time. This ground of appeal was raised for the first time when the appellant filed a fresh form No.35 on 17.03.2012. This additional ground of appeal filed by the appellant cannot be admitted as this was never raised before the ITAT & the Hon'ble ITAT vide its order dated 22.02.2011 set aside specific issue to the CIT(A) with a very specific directions which was "to verify whether the counsel of the assessee actually argued the grou....
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....ents:- i) CIT vs. Cellulose Products of India Ltd, (1985) 151 ITR 499 (FB), ii) CIT vs. National Thermal Power Co. Ltd, 157 CTR 0249 iii) CIT vs. Smt. Maniben Valji Shah, 204 CTR 0249 iv) CIT vs. Geno Pharmaceuticals Ltd, 32 taxman.com 162 v) CIT vs. Mr. Salman Khan in ITA No.2362 of 2009 6. Ld. Departmental Representative, on the other hand, vehemently contends that the ld. CIT(A) in categorical terms, after due verification of records, has held that no arguments were made by the assessee at the time of hearing, no 154 application was ever filed before the CIT(A) to indicate that Ground No.2 regarding re-opening was contested and not decided. The assessee is building small trick to wriggle out of the situation by hook or by crook and entered in multiplicity of proceedings to diverge the attention from actual facts. 7. I have heard the rival contentions, perused the material available on record and gone through the orders of the authorities below. From the record, it emerges that the assessee filed affidavit before the lower authorities and the relevant part of which reads as under:- "02. During the personal hearing, I had contested the initiation and validi....
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....t, the ld. Counsel for the assessee contends that there is neither any concealment of income nor any furnishing of inaccurate particulars of income. The assessee filed following documents:- "(1) The donors have confirmed the gift. (2) The 'a' had filed the gift deed as well as affidavit of the donors confirming the gift. (3) The donors are assessed to tax. The donor had remained present before AO to give the statement, but AO refused to record the statement of the donors ultimately the donors filed the suo moto statement confirming the gift. (4) The donors have filed details of ITReturn, Pan Card, Cash book, balance sheet, proof of holding agriculture land, copy of invoices affidavits. (5) There is no material to show that the amount of gift of Rs. 19,40,826/- gifted by the donors were the money given by the donee in any form at any time. (6) The donors are the members of the hindu undivided family and not any outsider." 8.1 The ld. CIT(A) upheld the penalty by following observations:- 6. I have gone through the order of penalty u/s. 271(1)(c), submission of the appellant and the assessment record. From the assessment record, it is seen that the appe....