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TMI Blog2012 (8) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been examined by the A.O. he should have called for the remand report or carry out enquiries himself as he has the power as co-terminus of that A.O. this could not be made the basis of deleting the additions. "4. The Ld. CIT (A) has erred in allowing relief to assessee firm merely on the ground that A.O. has not summoned the purchaser or alleged purchaser. "5. The learned CIT (A) failed to appreciate the fact that though the sale deed is entered with other person than same mentioned in seized documents from whom cash is received does not mean that cash is not received by assessee firm, reflected in seized documents. 6. The learned CIT (A) failed to appreciate the fact that getting the flat registered on the name of any other person than the person whose name is mentioned in the seized documents as having given cash is only on pray of the assessee. "7. The order of the Ld. CIT (A) is perverse as it has been passed ignoring the facts on record." 2. The assessee has filed an application under Rule 27 of the ITAT Rules, 1962: "1. The 158BD proceedings have been initiated after a lapse of two years from the date of search action. "2. The satisfaction that is required to be rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of the one year from the end of the month in which the assessee filed his return of income in response to notice u/s.158BD. The Ld. Counsel relied on the decision in the case of ACIT vs. Hotel Blue Moon 321 ITR 362. We have also heard the Ld. D.R. 6. In the case of B.K. Bamasi (supra) the Hon'ble jurisdictional High Court considered the right of the respondent to raise new ground and also the consequences if the ground of the respondent is allowed and held as under: "38. Now there is no doubt that, as the assessee had already filed a voluntary return, the notice under s. 34(1)(a) was wrongly issued and the proceedings of assessment which took place in pursuance of that notice are invalid. This is the ratio laid down by the Supreme Court in its said judgment in the case of CIT vs. Ranchhoddas Karsondas (supra) Mr. Joshi has not disputed this position. The only question is whether the Tribunal was entitled in law to refuse to allow the assessee to urge that ground in the appeal before it. Now a Division Bench of this High Court in CIT vs. Hazarimal Nagi & Co. (1962) 46 ITR 1168 (Born), after considering the relevant sections of the IT Act and the relevant Rules made thereunder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that it was open to a respondent in appeal who had not filed cross-objection with regard to the portion of the decree which had gone against him to urge in opposition to the appeal of the plaintiff a contention which if accepted by the trial Court would have necessitated the total dismissal of the suit, but the decree in so far as it was against him would stand. The judgment of the Tribunal in our case clearly shows that, although the assessee wanted to raise a new point as a ground of defence in the appeal, he specifically stated that he wanted to rely upon it only for the purpose of having the appeal by the Department for enhancement in income-tax dismissed. But even if the assessee had not made such a statement, the above judgment shows that the assessee would be entitled to raise a new ground, provided it is a ground of law and does not necessitate any other evidence to be recorded the nature of which would not only be a defence to the appeal itself, but may also affect the validity of the entire assessment proceedings. If the ground succeeds, the only result would be that the appeal would fail. The acceptance of the ground would show that the entire assessment proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) and 143(3) would appear to imply that the provisions of s. 143(1) are excluded. But s. 143(2) itself becomes necessary only where it becomes necessary to check the return, so that where block return conforms to the undisclosed income inferred by the authorities, there is no reason, why the authorities should issue notice under s. 143(2). However, if an assessment is to be completed under s. 143(3) r/ w s. 158BC, notice under s. 143(2) should be issued within one year from the date of filing of block return. Omission on the part of the assessing authority to issue notice under s. 143(2) cannot be a procedural irregularity and the same is not curable and, therefore, the requirement of notice under s. 143(2) cannot be dispensed with. The other important feature that requires to be noticed is that the s. 158BC(b) specifically refers to some of the provisions of the Act which requires to be followed by the AC while completing the block assessments under Chapter XIV-B of the Act. This legislation is by incorporation. This section even speaks of sub-sections which are to be followed by the AO. Had the intention of the legislature was to exclude the provisions of Chapter XIV of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the expression 'as far as possible' will mean that the manner provided in the code for attachment or sale of property in execution of a decree shall be applicable in its entirety except such provision therein which may not be practicable to be applied. "16. The case of the Revenue is that the expression 'so far as may be apply' indicates that it is not expected to follow the provisions of s 142, sub-ss. (2) and (3) of s. 143 strictly for the purpose of block assessments. We do not agree with the submissions of the learned counsel for the Revenue, since we do not see any reason to restrict the scope and meaning of the expression 'so far as may be apply'. In our view, where the AO in repudiation of the return filed under s. 158BC(a) proceeds to make an enquiry, he has necessarily to follow the provisions of s. 142, sub-ss. (2) and (3) of s. 143. "17. Sec. 158BH provides for application of the other provisions of the Act. It reads: "Save as otherwise provided in this chapter, all the other provisions of this Act shall apply to assessment made under this chapter." This is an enabling provision, which makes all the provisions of the Act, save as otherwise provided, applicable for p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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