TaxTMI 
TaxTMI 
2019 (9) TMI 1042
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....t? (B) Whether on the facts and in the circumstances of the case the ITAT was right in law in holding that the sum of Rs. 11,23,36,500/- constituted genuine bad debts of the assessee, when the fact remained that the debtor disclosed the same as outstanding debts in their accounts? (C) Whether on the facts and in the circumstances of the case the ITAT was right in law in holding that surcharge u/s 113 of the Act was not leviable on the assessee ignoring in the process the conclusive decisions of the Hon'ble Supreme Court of India in "CIT V/s. Suresh N. Gupta" (2008) 297 ITR 322, upholding this levy in all assessments relating to searches?" 3. Thereafter, on 11.02.2016, the Respondents filed a memo of cross-objections alongwith application for condonation of delay. This is numbered as Miscellaneous Civil Application No. 179 of 2016. 4. On 07.03.2016, the Division Bench of this Court ordered that the application for condonation of delay in filing the cross-objections will be examined at the stage of hearing of Tax Appeal No. 75 of 2008 as was suggested by the learned Counel appearing for both the parties. 5. Today, therefore, the Tax Appeal as well as th....
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....e under Section 143(2) of the Income Tax Act is necessary or not had not been decided by the Hon'ble Apex Court. Besides, he points out that the ITAT in this case, had not given any specific finding on this issue against the Assessee. Therefore, it was felt that there was no necessity to file any cross-objections. He submits that there are sufficient powers vested in this Court to frame additional substantial questions of law even at the stage of final hearing of the Appeal. He refers to the decision of this Court in Commissioner of Income Tax v/s. M/s. Sodder Builder and Developers (P) Ltd., in Tax Appeal no. 49 of 2008 decided on 16.07.2019 to submit that the additional substantial questions of law precisely on the issue of non-issuance of notice under Section 143(2) of the Income Tax Act was framed by this Court and answered in favour of the Assessee. For all these reasons he submits that either the delay in the institution of the cross-objections be condoned and the cross-objections be taken into consideration or at least substantial questions of law be framed at this stage, now that the matter is fully covered by the decision of the Hon'ble Supreme Court in the case of....
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....nd twenty days from the date on which the order appealed against is received by the assessee or the Principal Chief Commissioner or Chief Commissioner or Principal Chief Commissioner or Commissioner. (b) [***] (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (2A) The High Court may admit an appeal after the expirty of the period of one hundred and twenty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves su....
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....ice under Section 143(2) of the Income Tax Act is not even a curable defect. Record also indicate that this issue was precisely raised by the Assessee before the ITAT. The ITAT however, after recording that such issue was raised before it, failed to decide such issue one way or the other because, the ITAT held in favour of the Assessee on some other grounds. 19. Upon cumulative consideration of the aforesaid circumstances, we are quite satisfied that this Appeal involves the aforesaid substantial question of law. We are also satisfied that if the substantial question of law is decided in favour of the Assessee, then, there will be no necessity to decide the other substantial questions of law framed by us on 27.08.2008 at the time of admission of this Appeal. 20. In M/s. Sodder Builder and Developers (P) Ltd (supra) in similar circumstances, this Court framed an additional question of law precisely on the issue of absence of notice under Section 143(2) of the Income Tax Act in relation to proceedings under Section 158BC of the Income Tax Act. In the said decision as well, this Court held that if such issue were to be decided in favour of the Assessee, then there would arise no....