TMI Blog2010 (6) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... dent. B.R. Kaushik, Accountant Member These two cross-appeals have been filed by the assessee against the order dt. 5th March, 2009 of the learned CIT(A). ITA No. 308/Luck/2009 (Assessee's appeal) 2. The assessee has challenged the non-deletion of the addition of Rs. 2,60,000 on account of part expenses out of travelling, conveyance and telephone disallowed by the AO. 3. During the course of hearing, the learned counsel filed petition for admission of additional grounds challenging the reopening of the assessment under section 147 of the IT Act and consequent finalizing of assessment as per order under section 144 read with section 147 dt. 27th Dec, 2007 of the Act. It is contended that the assessee had filed return of inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy [1992] 197 ITR 637 (All.). 4. The learned Departmental Representative reiterated that proceedings under section 147 were validly taken. He also submitted that this issue does not arise out of the impugned order of the learned CIT(A) dt. 5th March, 2009 because the learned CIT(A) in para 2 at p. 2 of his order has clearly stated that "During assessment proceedings no specific objection was raised by the assessee/his counsel on this issue of action initiated under section 147 of the IT Act." The learned Departmental Representative relied on the following decisions : (1) CIT v. Tollaram Hassomal [2008] 298 ITR 22 (MP); (2) ITO v. Vinod Kumar Sachdeva [2009] 29 SOT 65 (Jodh.) (URO); (3) Sunil Kumar Pugalia (HUF) v. ITO [2009] 120 TT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the learned CIT(A) that the AO was not justified in taking action under section 148 of the Act. The submission of the learned Departmental Representative is also correct that the learned CIT(A) has given a clear Finding that the assessee had not taken any specific objection against action under section 147 of the Act during the course of assessment proceedings. We are however of the considered opinion that the issue regarding validity of assessment for the reason of issuing of notice under section 148 of the Act when the time-limit for issuing notice under section 143(2) of the Act was available to the AO, is a pure question of law and no investigation of facts is required for deciding this issue. The decision of the Hon'ble Madhya Pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 147 can be initiated even when the time was available for issuing notice under section 143(2) of the Act, cannot be considered tenable in view of the Third Member decision in the case of Super Spg. Mills Ltd. (supra). The decisions cited by the learned Departmental Representative are, therefore, of no help to the Revenue in view of the fact that the Third Member decision takes precedence over the decision of the Division Bench. Since the Third Member decision in the case of Super Spg. Mills Ltd. (supra) squarely supports the case of the assessee, the submissions of the learned Departmental Representative are rejected and the additional grounds of appeal raised by the assessee challenging the validity of assessment by issuing n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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