TMI Blog2012 (7) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee’s argument is that notice in fact was not served even after remand from this Court and that the cross-objection was filed since the pendency of appeals was noticed. Thus, the Tribunal could have examined whether the cross objections could be entertained in the facts and circumstances of the case having regard to the independent power to entertain them contained u/s 253 (5) - direction to consider cross-objections after giving due notice to the parties - in favour of assessee. - ITA No.331/2012, ITA No.332/2012, ITA No.333/2012, ITA No.334/2012, - - - Dated:- 6-7-2012 - MR. JUSTICE S. RAVINDRA BHAT, MR. JUSTICE R.V. EASWAR, JJ. For Appellant: Mr. M.P. Rastogi with Mr. K.N. Ahuja, Advocates. For respondent Mr. Sanjeev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant. However, the ITAT decided the appeals by its order dated 06.11.2009. Paragraph-4 of the said order noticed that no-one was present on behalf of the assessee in spite of service of notice of hearing. The Tribunal by that order directed remand to the A.O. on the question of consideration of additional evidence relied upon by the appellant. The matter was carried in appeal by the assessee to this Court under Section-260A being ITA Nos.876, 877, 878 and 880/2010. This Court by its order dated 13.07.2010 disposed of the said four appeals. The Court expressly kept open and did not go into the question whether notice of appeals before the ITAT had in fact been served upon the assessee as is evident from the following observations: - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available with the A.O. to form reason to believe‟ that the income has escaped assessment as per the provisions of Section 147 of the IT Act. 3) The order u/s 143 (3)/147 of the IT Act having been passed on the dictates of the investigation Department, based on the investigation report, there is no independent application of mind by the A.O. to form reason to believe that income has escaped assessment. 11. The aforementioned grounds of Cross Objections are identical in respect of all the years involved. At this stage, it may be mentioned that validity or otherwise of re-assessment proceedings has never been a question before the Tribunal. From the decision of Hon‟ble High Court also it does not appear that validity of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rohibetur, prohibetur at omne per quod devenitur ad illud . Applying the above principle, we hold that relief sought by the assessee through CO cannot be given in law. Such proposition of law is supported by following judicial pronouncement: - In Jagir Singh v. Ranbir Singh AIR 1979 SC 381, the Apex Court has observed that an authority cannot be permitted to evade a law by shift or contrivance . While deciding the said case, the Supreme Court placed reliance on the judgment in Fox v. Bishop of Chester [1824] 2 B C 635, wherein it has been observed as under (page 384): To carry out effectually the object of a statute, it must be construed as to defeat all attempts to do so, or avoid doing, in an indirect or circuitous manner that which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any part thereof; within thirty days of the receipt of the notice, file a memorandum of cross-objections, verified in the prescribed manner, against any part of the order of the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals), and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3). 14. As it can be seen from the aforementioned provision, the cross objections can be filed within 30 days on receipt of notice fixing the hearing of the appeal by the other party irrespective of the fact that whether or not the appeal has already been filed against the said order. For that purpose the notice of hearing should be in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en raised by the assessee through cross objections is not admissible. 5. It was urged that in the absence of any communication as to whether notice for appeal had been issued either in the first instance or after the remission, the Tribunal could not have held as it did in the impugned order, that the cross objection was not maintainable. Learned counsel for the appellant stressed the fact that the right to file cross-objections is available even beyond the period of time as is evident from the textual reading of Section-253 (5) of the Act. 6. Learned counsel for the Revenue contended that the assessee s cross objections were correctly rejected. He relied upon the previous judgment of this Court and submitted that it was restricted in c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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