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2010 (11) TMI 96 - HC - Income TaxSubstantial question of Law - Whether the Income Tax Appellate Tribunal is justified by expressing an opinion that the assessee appellant was not entitled under law to raise a contention that the notice issued by the assessing officer under Section 143(2) was impermissible because of the proviso attached to the said provision on the ground that such an issue was not raised on the first round of appeal before the CIT(A) was barred by doctrine of merger - Relying on the decision of the apex Court rendered in Assistant Commissioner Income Tax and another vs. M/s. Hotel Blue Moon, (2010)3 SCC 259 contended that issuance of notice under Section 143(2) of the Act within the prescribed time for the purpose of block assessment under Chapter XIV-B of the Act is mandatory – It was held that the first substantial question of law formulated by this Court has to be answered in the negative and in favour of the assessee - Whether in the facts and circumstances of the case it can be held that the order passed by the assessing officer on the first occasion had merged in absolute terms in the order passed by the CIT(A) on the first occasion and further the order passed by the CIT(A) does not tantamount to open remand but a partial remand - In the case of Commissioner of Income Tax v. K.L.Rajput (supra) has held that order of the Income Tax Officer merges with the appellate order only to the extent it was considered and decided by the appellate authority but the matter which is not covered by the appellate order of the appellate authority is left untouched and to that extent assessment order survives – It was held that the order was an open remand
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