SURESH V. KUKADIYA,MUMBAI vs. ACIT CC 15 & 16, MUMBAI

आदेश / O R D E R

Per Bench: -

The revenue’s cross-objections are in support of the impugned order. The cross-objections also contest the assessee’s action in raising new issues for the first time before the Tribunal.

s raised by the assessee in all the above stated appeals.

4. In view of the admitted position, without delving much deeper into the issues, we admit the additional grounds of appeal in terms of judgment of Hon’ble Apex Court rendered in National Thermal Power Corporation Ltd. Vs. CIT [229 ITR 383 SC], Jute Corporation of India Ltd. Vs. CIT [187 ITR 688 SC] & Ahmedabad Electricity Company Ltd. Vs. CIT [199 ITR 351 Bom FB] and send back the matter to the file of Ld. first appellate authority on similar directions as given by the Tribunal in cited decision of another assessee belonging to the same group. For ready reference, the relevant observation of the Tribunal, in the cited order, could be extracted in the following manner: -

5. Before the Tribunal, the assessee has filed an application requesting for admission of the following additional ground of appeals:

1. The learned CIT(A) ought to have held that the assessment order passed by the Assessing Officer u/s.143(3) r.w.s. 153C of the Act is void ab initio and bad in law.

2. Let CIT(A) ought to have held that Assessment Order passed by Assessing Officer u/s. 153C is bad in law for want of proper satisfaction notes recorded by the Assessing Officers.

3. On the facts and circumstances of the case and in law, the learned CIT(A) ought to have held that the assessment order passed by the Assessing Officer u/s. 143(3) r.w.s 153C of the Act is time barred and in violation of provisions of section 153 of the Act and hence, bad in law.

4. On the facts and circumstances of the case and in law, the learned CIT(A) ought to have held that the appointment made by the Assessing Officer of the Special Auditor is not in accordance with the provisions of section 142(2A) of the Act. 5.1 In application for admission of the above additional grounds of appeals, the assessee has submitted that since the assessment u/s 153C and the appointment of the Special Auditor itself is bad in law, the consequential assessment order passed by the AO suffers from the legal infirmity, bad in law and void ab initio. It is further stated that the assessee had not raised the above ground challenging the validity of the assessment order passed by the AO u/s 143(3) r.w.s. 153C before the Ld. CIT(A) for want of proper advice. It is also submitted that the above additional ground of appeal raises purely a question of law and no new facts are required to be investigated. Finally, stating that legal grounds going to the root of the validity of the assessment can be raised at any stage of appeal, the assessee submits that the above additional grounds of appeal may be admitted and adjudicated. 5.2 Before us, regarding the issue of validity of notice u/s 153C, the Ld. counsel of the assessee relied on the decision in Pepsi Foods P. Ltd. v. ACIT (2014) 367 ITR 112 (Delhi), Pepsico India Holdings P. Ltd. v. ACIT (2015) 370 ITR 295 (Delhi), CIT v. M/s Arpit Land P. Ltd. (ITA No. 83 of 2014) & CIT v. M/s Ambit Realty Pvt. Ltd. (ITA No. 150 of 2014) (Bombay), ARN Infrastructure India Ltd. v. ACIT 394 ITR 569 (Delhi), CIT v. Sinhgad Technical Education Society 378 ITR 84 (Bombay) and CIT v. Sinhgad Technical Education Society (Civil Appeal No. 11080 of 2017) (SC). Also in support of his contentions that the assessment made by the AO is barred by limitation, the Ld. counsel relied on the decision in CIT v. BJN Hotels Ltd. (2016) 382 ITR 110 (Karn), order of the Tribunal in Shanti Lal Godawad v. ACIT 126 TTJ 135 and M/s Haldia Petrochemicals Ltd. v. CIT in for AY 2008-09 (ITAT, Kolkata). In support of his contentions regarding validity of special audit, the Ld. counsel relied on the decision in Sahara India (Firm) v. CIT (2008) 300 ITR 403 (SC), RPS Associates v. DIT (Inv) (2015) 280 CTR (All) 582, Alidhara Texpro Engg. P. Ltd. v. DCIT (2011) 332 ITR 115 (Guj), West Bengal State Coop Bank Ltd. v. JCIT (2004) 267 ITR 345 (Cal), order of the Tribunal in ITO v. Vilsons Particle Board Industries Ltd. (2017) 184 TTJ (Pune) 84 and M/s Jyoti Traders v. DCIT in IT(SS) 62/Mum/2008 and 111/Mum/2008 & others dated 20.05.201 (ITAT-Mumbai).

6. The Ld. DR, however, filed an application dated 19.07.2018 stating that certain details were called for from the AO and those details had not been received and therefore adjournment be given.

7. We have heard the rival submissions and perused the relevant materials on record. The case was initially heard on 05.03.2018. It was put up for clarification on 20.07.2018 in view of the recent decision of the Hon’ble Supreme Court in Tapan Kumar Dutta v. CIT (2018) 302 CTR (SC) 102. When the case was initially fixed for hearing on 05.03.2018, the Ld. DR had also filed an application dated 01.03.2018 stating that considering the quantum of substantial additions involved in these cases, paper book and assessment records are required from the AO and therefore, adjournment may be given. Thus it seems instead of presenting his case, the Ld. DR was keen on filing applications seeking adjournment. 7.1 The first issue to be decided is whether to admit the additional grounds of appeal filed by the assessee. We find that the question of law raised in the above additional grounds of appeal goes to the root of the matter. In National Thermal Power Co. Ltd. v. CIT (1998) 229 ITR 383, 387 (SC), it has been held that the Tribunal has jurisdiction to examine a question of law which arises from the facts as found by the authorities below and having a bearing on the tax liability of the assessee. The ratio laid down in the above decision is applicable in the instant case. Therefore, we admit the additional grounds of appeal filed by the assessee. However, as mentioned hereinabove the first appellate authority had no opportunity to adjudicate the additional grounds of appeal as these were not filed before him. In the interest of justice, we set aside the order of the Ld. CIT(A) and restore the matter to him to make a de novo order after giving the assessee reasonable opportunity of being heard. We direct the assessee to file these additional grounds of appeal along with relevant documents/evidence before the Ld. CIT(A). As the matter has been restored to the file of the Ld. CIT(A), we are not adverting to the case laws relied on by the Ld. counsel on merits of the case.

8. In the result, the appeal is allowed for statistical purposes.

Therefore, taking a consistent stand, the impugned orders are set aside and the matters stands restored make to Ld. first appellate authority for de novo adjudication on similar lines. The assessee’s appeal listed at serial nos. 1 to 6 stands allowed for statistical purposes whereas the revenue’s cross objections, against the same, stand dismissed as infructuous.

Sd/- Sd/- (Saktijit Dey) (Manoj Kumar Aggarwal) �ाियक सद� / Judicial Member लेखा सद� / Accountant Member मुंबई Mumbai; िदनांकDated : 16/05/2019 Sr.PS:-Jaisy Varghese आदेश की �ितिलिप अ�ेिषत/Copy of the Order forwarded to : अपीलाथ�/ The Appellant 1. ��थ�/ The Respondent 2. आयकरआयु�(अपील) / The CIT(A) 3. आयकरआयु�/ CIT– concerned 4. िवभागीय�ितिनिध, आयकरअपीलीयअिधकरण, मुंबई/ DR, ITAT, Mumbai 5. गाड�फाईल / Guard File 6.