DEEPAK L. KULPE,MUMBAI vs. INCOME TAX OFFICER 26(2)(2), MUMBAI

आदेश / O R D E R

Per Sandeep Gosain, Judicial Member:

Deepak L. Kulpe 2. At the very outset, our attention was drawn towards application dated 10/1/18 wherein the assessee want for seeking permission for raising additional ground of appeal

3. We have heard the counsels for both the parties and we have also gone through the contents of the letter dated 10 /1/18 wherein the assessee has submitted that the assessment was reopened vide issue of notice u/s 148 dated 10/5/13.It was further contended that neither the notice under section 148 was served upon nor the reasons for reopening the assessment were communicated to him during the assessment proceedings. Therefore, now before us the assessee wants to file additional ground of appeal thereby challenging the reopening u/s 147 of the income tax act on the ground that mandatory notice under section 148 was not served on the assessee and the reasons for reopening the assessment have also not been communicated to the assessee. After hearing the counsels of both the parties and after going through the contents contained in the application dated 10/1/18 and by keeping in view the principles laid down by the Hon’ble Supreme Court in the case of NTPC versus CIT 229 Deepak L. Kulpe ITR 383 and also other judgements such as Jute Corporation of India Ltd versus CIT 187 ITR 688 Supreme Court and Ahmedabad electricity company Ltd versus CIT 199 ITR 351 (Bombay), we are of the considered view that the ground which the assessee now wants to raise before us by way of additional ground is legal in nature and hence it can be raised at any point of time therefore ,we allow the assessee to raise this ground by way of additional ground of appeal and consequently, allow the application dated 10/1/18 and admit the additional ground raised by the assessee for adjudication.

4. We further noticed that through additional groundthe assessee wants to challenge the order of AO in making assessment u/s 143 r.w.s 147 of the I.T.Act,without jurisdiction as the same was passed without serving notice u/s 148 of the I.T. Act which is mandatory requirement of law.

5. On perusal of the order passed by Ld. CIT(A),we noticed that this ground was not raised by the assessee before Ld CIT(A).In our considered view for adjudicating this ground, assessment records of the revenue are required to be analysed as it is categorically mentioned in the order of assessment dated Deepak L. Kulpe 30.06.14 u/s 148 of the I.T. Act dated 10/5/13 was issued and served on the assessee. Therefore, in order to adjudicate the controversy, it is necessary to restore this ground back to the file of Ld CIT(A) while setting aside the order of Ld CIT(A) with a directions to adjudicate the additional ground raised by the assessee by passing a speaking order. Before parting, we may make it clear that our decision to restore the matter back to the file of Ld. CIT(A)shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by the Ld. CIT(A)independently in accordance with law.

Order pronounced in the open court on 20th April, 2018. Sd/- Sd/- (R.C. Sharma) (Sandeep Gosain) लेखासदस्य / Accountant Memberन्याययकसदस्य / Judicial Member मुंबई Mumbai;यदनांकDated : 20.04.2018 Sr.PS. Dhananjay Deepak L. Kulpe आदेशकीप्रनिनिनिअग्रेनर्ि/Copy of the Order forwarded to : अपीलाथी/ The Appellant 1. 2. प्रत्यथी/ The Respondent 3. आयकरआयुक्त(अपील) / The CIT(A) 4. आयकरआयुक्त/ CIT- concerned यवभागीयप्रयतयनयध, आयकरअपीलीयअयधकरण, मुंबई/ DR, ITAT, 5. Mumbai 6. गार्डफाईल / Guard File आदेशधिुसधर/ BY ORDER,