TaxTMI 
TaxTMI 
1982 (8) TMI 86
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.... already filed a return of income 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 u/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 u/s 143(3) read with s. 144B of the IT Act and completed the assessment on 18th September, 1980. 3. The assessee field 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 Government 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 Rancho's karsondas (1959) 36 ITR 569 (SC) he held that the ITO had no Jurisdicti....
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....unal under ITAT, r.27. 8. It 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 u/s 147(a) on 29th Jan., 1976, it would be time barred on 21st Mar, 1980. The ITO submitted a draft assessment order to the IAC u/s 144B on 28th Mar, 1980. The IAC's directions were received by the ITO on 12th Sep, 1980. Therefore, under the provisions of s.153(1) (c) of the IT Act, read with s. 152(2)(b) of the Act, the assessment would be time barred on 15th Sep, 1980. The ITO, however, completed the assessment on 18th Sep, 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 maintain-ability of proceedings u/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....
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....do not validate 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 late 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 ITAT, ITR. 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 ITAT has discretion to allow any party to an appeal, may be the app....
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....as eligible 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 the 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 u/s 147(1)(a) on 29th January 1976. The draft assessment order was submitted by the ITO to the IAC u/s 144B on 28th March 1980. The IAC's directions were received by the ITO on 12th September 1980. The ITO made the assessment on 18th September 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 ITAT, Bombay Bench 'D' decision dt. 8th January 1982 in I....