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2019 (7) TMI 1960 - AT - Income TaxValidity of reopening of assessment u/s 147 - as argued notice u/s 143(2) of the Act was issued beyond the prescribed time - Whether it is compulsory to make an application in writing to invoke the provisions of rule 27 of ITAT rules? - HELD THAT:- We note that the dispute regarding the non-issuance of notice under section 143(2) of the Act was very much in the notice of the Ld. DR as evident from the order sheet entries maintained by the registry office of the ITAT who sought times to revert on the issue raised under rule 27 of ITAT Rules on the reasoning that he will take the report from the office of the AO. Therefore, there remains no ambiguity that the affected party was duly given the opportunity - we are of the view the issue raised under rule 27 of ITAT rules was very much in the knowledge of the Ld. DR. As such the case was fixed for hearing on several occasions as part heard, meaning thereby the Ld. DR was very familiar with the issue as discussed above. We also note that the assessee has also made an application under rule 27 of ITAT rules vide letter dated 13-03-2019. The relevant extract of the application has already been extracted in the preceding paragraph. The above application was also supplied to the Ld. DR as well and the matter was heard up to 30th April 2019. Therefore it is clear that the other party was well-informed about the invocation of the issue under the rule 27 of ITAT Rules. Therefore we conclude that the Ld. AR has rightly invoked the provisions of rule 27 of ITAT rules. Non-adjudication of the issue by CIT - Notice issued u/s 143(2) was time-barred - whether the non-adjudication of the issue raised by the assessee before the Ld. CIT (A) amounts to deemed rejection the ground of appeal of the assessee? - HELD THAT:- CIT (A) decided the technical issue in favor of the assessee on other reasons except for the issue on hand, i.e., nonissuance of the statutory notice. Thus the question arises whether the assessee was aggrieved because of non-adjudication of the ground of appeal by the Ld. CIT(A). The answer is certainly in affirmative. But the assessee chose not to appeal as it succeeded on other reasons/ contentions raised before the ld. CIT(A). Accordingly, the Revenue filed an appeal before us on those points which were decided by the Ld. CIT (A) in favor of the assessee. Now the controversy arises whether the assessee can raise the issue not decided by the Ld.CIT (A) under rule 27 of ITAT rules before us. In our considered view, the assessee was very much entitled to raise the issue under rule 27 of ITAT Rules which was not decided by the Ld. CIT (A) as the point of contention of the assessee relates to the same issue raised by the Revenue. Non-issuance of notice u/s 143(2) - We conclude that there was not issued the statutory notice under section 143(2) of the Act within the prescribed time. Thus in the absence of the statutory notice, the assessment framed under section 143(3)/147 of the Act is not sustainable. Hence the ground raised by the assessee in the application under rule 27 is allowed. Reopening based on revenue audit objection - CIT(A) has passed a speaking order, which is self-explanatory and reproduced herein above. Thus,we are in agreement with the finding of the ld. CIT-A that the reopening of the assessment under section 147 of Act based on revenue audit objection is not permissible. Therefore we concur with the finding of the learned CIT(A) after placing the reliance on the judgment in the case of CIT Vs. K.Y. Pilliah And Sons [1966 (10) TMI 35 - SUPREME COURT] - Decided against revenue.
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