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Income Tax Appellate Tribunal, “C” BENCH : BANGALORE
Before: SHRI A. K. GARODIA & SHRI PAVAN KUMAR GADALE
Per A.K. Garodia, Accountant Member
This appeal is filed by the assessee and the same is directed against the order of learned CIT(A)-14, Bengaluru, dated 24.11.2016, for the Assessment Year 2011-12.
Although several grounds on merits are raised by the assessee but the assessee has raised several additional grounds also and in course of hearing, our attention was drawn by learned AR of the assessee to ground No.2 of the additional grounds raised by the assessee and submitted that this issue was Page 2 of 4 also raised before learned CIT(A) as noted and decided by him in paras 11 and 12 of his order and from the same, it can be seen that this issue was decided by CIT(A) by saying that this issue was not raised by the assessee at any point of time before the AO and that the assessee had participated in the assessment proceedings and therefore, these additional grounds raised before CIT(A) are not admitted. He submitted that in the present case, ground 2 raised by the assessee as additional ground should be decided first and the additional ground raised by the assessee before CIT(A) should be admitted and the matter may be restored back to the file of CIT(A) to decide those additional grounds raised before CIT(A) and if this is done then the issue on merit may also be restored back to the file of CIT(A) in its entirety because other issues should be decided after the decision on this legal issue regarding non-issue of valid notice by the AO under section 143(2) of the IT Act, 1961. Learned DR of the Revenue supported the orders of CIT(A).
We have considered the rival submissions and first of all, we decide additional ground 2 raised by the assessee before the Tribunal which reads as under:-
"2. The order passed by the learned Assessing Officer on the invalid notice issued under section 143(2) on the original return filed by the appellant is bad in law, consequently the order passed on the invalid notice is liable to be set aside on the facts and circumstance of the case.” 4. We also reproduce paras 11 and 12 from the order of CIT(A) which reads as under:-
The appellant has made a prayer during the course of appeal proceedings for admission of additional grounds of appeal. Ground no.4 raised in this application dt. 09.11.2016 has been admitted since it pertains to the existing dispute in the assessment order relating to Sec.11(2) and 11(3). The additional grounds 1 and 2 Page 3 of 4 contend that the order of the AO was based on the invalid notice dt. 27.08.2012 issued u/s. 143(2) on the original return filed by the appellant oil 29.09.2011 since the mandatory notice u/s. 143(2) was not issued on the revised return of income. I find from records that this issue was not raised at any point of 12. time before the AO and that the assessee had participated in the assessment proceedings. The grounds, therefore, cannot be admitted.
5. As per the additional ground 2 raised by the assessee before the Tribunal, this is the contention of the assessee that valid notice under section 143(2) of the IT Act, 1961 was not issued by the AO and therefore, the Assessment Order passed by the AO is bad in law. As per para 11 reproduced from the order of CIT(A) as above, it is seen that before CIT(A) also, this issue was raised by the assessee by way of filing additional grounds 1 and 2 and as per para 12 of the order of the CIT(A) as reproduced above it is seen that learned CIT(A) did not admit this additional ground raised before him on this basis that the assessee has not raised this issue at any point of time before the AO and the assessee had participated in the assessment proceedings. In our considered opinion, when a legal issue is being raised by the assessee, it can be raised at any stage even if it is not raised at the earlier stage and hence, even if no such issue is raised by the assessee before AO and he assessee and the assessee participated in the assessment proceedings then also this legal issue can be raised by the assessee before CIT(A) or even before the Tribunal for the first time. Hence, learned CIT(A) was not justified in refusing to admit the additional grounds raised by the assessee before him. We therefore, admit these 2 additional grounds raised by the assessee before CIT(A) and then restore the matter back to the file of CIT(A) to decide these additional grounds raised by the assessee before CIT(A). We direct the learned CIT(A) to decide these 2 additional grounds which were raised by the assessee and if the Page 4 of 4 assessee succeds on this issue, then the Assessment Order itself will be invalid and no other issue will be surviving for decision but if the assessee fails regarding these 2 additional grounds, then the remaining issue should be decided by the learned CIT(A) afresh because the technical issue / legal issue should be decided first before deciding any other issue on merit. In view of this, no adjudication is called for on merit at the present stage.
In the result, assessee’s appeal is allowed for statistical purposes. Pronounced in the open court on the date mentioned on the caption page.