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2007 (7) TMI 469 - HC - Income TaxWhether on the facts and in the circumstances of the case the Tribunal is right in law in confirming the additions pertaining to the balances in the Indian Bank? Whether on the facts and in the circumstances of the case the Tribunal is right in law in not having posted the appeal for hearing and giving the appellant due notice of the same subsequent to the hearing of the miscellaneous petition filed by the appellant? Whether on the facts and in the circumstances of the case the Tribunal is right in law in passing the impugned order on the merits of the case in gross violation of the principles of natural justice? Held that:- While allowing the assessee to establish its stand whether there exists an apparent mistake in the order passed by the Tribunal, the Tribunal can expect the assessee only to establish the point to that effect, but cannot expect to argue on the issue which the Tribunal failed to decide while passing the orders on the appeal on 21-9-2004.The Tribunal, as an ultimate fact finding authority cannot shut the door at the threshold by directing the assessee to argue on the fact in issue while making arguments in respect of an application under Section 254(2) of the Act. Thus the way in which the third issue has been dealt with by the Tribunal at the stage of deciding the miscellaneous petition itself, cannot be regarded as a correct approach. The appellant/assessee should have been given an opportunity to put forth its case in respect of the third issue which has been left out for consideration in the original order passed by the Tribunal by giving due opportunity. Hence, the impugned order in the appeal is set aside and the matter is remitted back to the Tribunal to reconsider the issue afresh after giving due opportunity to the appellant/assessee.
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