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Income Tax Appellate Tribunal, DELHI BENCH ‘E’, NEW DELHI
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘E’, NEW DELHI Before Sh. N. K. Saini, AM and Smt. Beena A. Pillai, JM Asstt. Year : 2009-10 National Bakery Machine, Vs Income Tax Officer, C/o B.P. Gupta &Co., Tax Laws Ward-2(1), Consultants, 186, W.K. Road, Meerut Opp. Nagin Prakashan, Meerut-25001(UP) (APPELLANT) (RESPONDENT) PAN No. AAEFN1513H Assessee by : Sh. K. Sampath, Adv. Revenue by : Sh. Rajesh Kumar, Sr. DR Date of Hearing : 22.05.2017 Date of Pronouncement : 23.05.2017 ORDER Per N. K. Saini, AM:
This is an appeal by the assessee against the order dated 31.03.2013 of ld. CIT(A), Meerut.
Following grounds have been raised in this appeal: “1. That in this case the Ld. A.O. had proceeded with the assessment proceedings without serving the notice u/s 143(2) of the Income Tax Act on the appellant.
2. That the Ld. CIT (A) erred in law and on facts in not considering the issue of notice u/s 143(2) as being covered in ground No. 1 of grounds of appeal taken before him.
National Bakery Machine 3. That the Ld. CIT (A), erred in law and on facts in not admitting the additional ground of appeal as an alternative that notice u/s 143 (2) was not served upon the appellant.
4. That in the absence of service of notice u/s 143(2) of the Income Tax Act, the Ld. C.I.T.(A) erred in law and on facts in not holding the assessment proceedings as invalid.
5. That without prejudice to grounds No. 1, 2, 3, & 4 the Ld. CIT (A), erred in law and on facts in maintaining the addition of Rs.19,90,944/- made by the Ld. A.O. for purchases of Iron as ingenuine. That in respect of this addition of Rs.19,90,944/- the observations of the Ld. CIT (A) were also inconsistent with the factual and legal position of the case.
6. That without prejudice to ground No.5 the Ld. CIT (A) erred in law and on facts in not annulling the assessment as a whole for lack of service of notice u/s 143(2) on appellant as mentioned in grounds No. 1, 2, 3, & 4 above.”
3. Vide Ground Nos. 1 to 4 and 6, the grievance of the assessee relates to the jurisdiction of the AO for initiating the assessment proceedings without serving the notice u/s 143(2) of the Income-tax Act, 1961 (hereinafter referred to as the Act).
During the course of hearing the ld. Counsel for the assessee at the very outset stated that this issue was raised before the ld. CIT(A) vide an additional ground. However, this ground was not admitted
National Bakery Machine and adjudicated by the ld. CIT(A). A reference was made to para 5 of the impugned order.
In his rival submissions the ld. DR supported the order of the ld. CIT(A).
We have considered the submissions of both the parties and carefully gone through the material available on the record. It is noticed that the assessee raised an additional ground relating to the service of notice u/s 143(2) of the Act but findings have not been given by the ld. CIT(A) on this issue, which is evident from para 5 of the impugned order which read as under: “5. It is noted that during the appeal proceedings, an additional ground of appeal was sought to be raised. It was that the notice u/s 143(2) of the IT Act was never served upon the appellant and as much, the assessment proceedings and the assessment made were not valid in law. Though this ground of appeal has not been admitted, it is noted that in the assessment order, it has been categorically stated by the AO that notice U/s 143(2) of the Act dated 23.03.2010 was issued to the assessee. The provision of subsection 3 of Section 124 would also be applicable in this case as notice U/s 142(1) of the Act was also issued (as stated in the assessment order and not denied by the assessee) and no objection was filed calling in question the jurisdiction of the AO to take up the case for scrutiny assessment order. The issue of service of notice has been raised for the first time during the appeal proceedings. Therefore, the same is not tenable.”
National Bakery Machine 7. From the aforesaid observation of the ld. CIT(A), it is clear that a legal issue was raised by the assessee before the ld. CIT(A) but the same was not adjudicated by observing that the assessee raised this issue first time before the ld. CIT(A) during the appellate proceedings. It is well settled that a legal issue can be raised at any stage. We, therefore, deem it appropriate to set aside this issue back to the file of the ld. CIT(A) and direct him to adjudicate this issue in accordance with law after providing due and reasonable opportunity of being heard to the assessee.
In the result, the appeal of the assessee is allowed for statistical purposes. (Order Pronounced in the Open Court on 23/05/2017)