Om Prakash Garg vs. Assistant Commissioner Of Income Tax

---1--- I.T.A.No.178/2010

08.03.2016 Shri Mukesh Agrawal, Advocate for the appellant. Shri Sanjay Lal, Advocate for the respondent. Heard counsel for the parties. In this appeal, the grievance of the appellant is that the Assessing Officer did not pass a speaking order. Secondly, the objections filed by the appellant have not been considered by the Assessing Officer. None of these points have been considered by the First Appellate Authority or the Second Appellate Tribunal, even though raised by the appellant. Reliance is placed on ground No.4. The same reads thus: “Ground No.4- That learned A.O. has erred in passing the reassessment order without passing any speaking order, so as to dispose of the objection raised by the appellant in respect of assumption of jurisdiction.” The tenor of this ground is that no speaking order was passed by the Assessing Officer and as a result of which, the appellant was at a loss to raise objection which could be considered by the Assessing Officer in the first place. This specific plea was obviously not taken before the First Appellate Authority or for that matter the Second Appellate Tribunal. From the reproduction of contentions raised by the appellant as it appears from para 1.3 of the judgment of the First Appellate Authority and opening paragraph of the judgment of the Second Appellate Tribunal, the crux of the argument of the appellant was that the proceedings under Section 147/148 have been ---2--- I.T.A.No.178/2010

initiated without any cogent material on record to believe that income has escaped assessment and also on wrong assumption of facts. This grievance is not saying the same thing which is mentioned in ground No.4 or the point argued before us in this appeal. In our opinion, the appellant cannot be permitted to raise new contentions which may involve mixed question of fact and law for the first time before the High Court and which contentions, as aforesaid, has not been specifically pursued before the two Appellate Authorities in the form in which the same is now raised. Realizing this position, counsel for the appellant prays for liberty to withdraw this appeal and to pursue remedy of review petition before the Income Tax Appellate Tribunal. Hence, the appeal is allowed to be withdrawn with liberty, as prayed. This liberty may not be construed as having accepted the contention of appellant or this Court being satisfied about the fact that the appellant must have raised the points with reference to ground No.4 or any other ground which has not been dealt with by the two Appellate Authorities. All questions in that behalf are left open. (A.M. Khanwilkar) (Sanjay Yadav) Chief Justice Judge shukla