TaxTMI 
TaxTMI 
1982 (8) TMI 83
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....e on 30th Aug., 1972. According to the ITO, however, since this return was not signed by the assessee himself, if it was not a valid return and the assessee's case was covered by the first limb under s. 147(a), i.e. according to him, the assessee has not filed any return as a result of which the assessee's taxable income had escaped assessment. The ITO, thereafter proceeded to finalise the assessment under s. 143(3) r/w s. 144B of the IT Act and completed the assessment on 18th Sept., 1980. 3. The assessee filed an appeal before the CIT(A). The CIT(A) has relied on the Bombay High Court decision in the case of CIT vs. A.J. Zaveri (1968) 68 ITR 594 (Bom) and in the case of Hargovindsing Narainsing vs. CIT (1973) 90 ITR 435 (Bom) and held that the return filed by the assessee on 30th Aug., 1972, though signed by the constituted attorney was a valid return. With this return on the file, following the dictum laid down in case of State of Assam and Another vs. Deva Prasad Barua and Another (1970) 75 ITR 18 (SC) and the Bombay High Court decision in the case of CIT vs. Ranchhoddas Karsondas (1959) 36 ITR 569 (SC), he held that the ITO had no jurisdiction to initiate proceedings under ....
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....t is submitted that the facts pertaining to this ground are that since the assessment was for the year 1972-73, and since it was reopened under s. 147(a) on 29th Jan., 1976, it would be time barred on 21st March, 1980. The ITO submitted a draft assessment order to the IAC under s. 144B on 28th March, 1980. The IAC's directions were received by the ITO on 12th Sept., 1980. Therefore, under the provisions of s. 153(1)(c) of the IT Act r/w s. 152(2)(b) of the Act, the assessment would be time barred on 15th Sept.,1980. The ITO, however, completed the assessment on 18th Sept., 1980, and hence it was barred by limitations. It was further explained by the assessee that since the CIT(A) had vacated the order of the ITO on the basis of the maintainability of proceedings under s. 147(a), the assessee has no grievance left. The assessee, therefore, could not and did not file a cross-objection or a cross appeal. 9. On behalf of the Revenue in reply, it is stated that as explained by the ld. Judges of the Gujarat High Court in the case of CIT vs. Karamchand Premchand Pvt. Ltd. (1969) 74 ITR 254 (Guj), the assessee was not competent to agitate the issue of limitation before the Tribunal at t....
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....ate an invalid return filed on behalf of the assessee. Thus the CIT(A)'s order on this issue is wrong and requires to be reversed. 12. This brings us to the alternative ground taken on behalf of the assessee on the issue of the limitation. In the first place, the question is whether the assessee can take up this issue at this later stage. As stated earlier, the assessee had taken the ground objecting to the belated assessment before the CIT(A). According to him, under the provisions of s. 153(1)(c) of the IT Act r/w s. 153(2)(b), the assessment was time barred and, therefore, invalid. The CIT(A) has not allowed the assessee's appeal on this ground. In fact, he has not dealt with it at all. In the circumstances, we have to hold that the issue was decided by the CIT(A) against the assessee. In our opinion, the Tribunal, r. 27 relied upon by the assessee entitles him to take up the issue before the Tribunal, purely as a defensive measure. Further, as explained by the ld. Judges of the Bombay High Court in the case of CIT vs. Gilbert & Barker Mfg. Co. Ltd. 1977 CTR (Bom) 347 : (1978) 111 ITR 529 (Bom), the Tribunal has discretion to allow any party to an appeal, may be the appellant....
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.... for raising this issue before the Tribunal, since the issue was raised before the CIT(A) and by implication was decided the issue by the CIT(A) against the assessee. Further, since all the facts relating to the determination of this issue were on record and since reasonable opportunity was given to the appellant to counter this ground, as explained by the learned Judges of the Bombay High Court in the case of CIT vs. Gilbert & Barker Mfg. Co. (1978) 111 ITR 529 (Bom), the assessee was eligible for raising this issue before the Tribunal. 16. On merits on the question of limitation as per the facts on record, the assessment for the year 1972-73 was reopened by the ITO under s. 147(1)(a) on 29th Jan., 1976. The draft assessment order was submitted by the ITO to the IAC under s. 144B on 28th March, 1980. The IAC's directions were received by the ITO on 12th Sept., 1980. The ITO made the assessment on 18th Sept., 1980. According to the ld. Counsel for the assessee, by the operation of the provisions of s. 153(1)(c) and s. 153(2)(b), the assessment was time barred. According to the ld. Deptl. Rep., as explained in the Tribunal, Bombay Bench 'D' decision dt. 8th Jan., 1982 in ITA No. ....