TMI Blog2012 (8) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/- on account of on-money received in sale of flats which was not reflected in books of accounts. 2. The learned CIT (A) wanted summoning of person who according to CIT (A) should have 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 to-terminus of that A.O. this could not be made the basis of deleting the additions. 3. That if the Ld. CIT (A) wanted summoning of person who according to CIT (A) should have 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate authority by taking the ground and that is not prohibited. The Ld. Counsel also relied on the Assam Co. India Ltd. Vs. CIT 256 ITR 483 (Gau.H .C.) to support his argument that even though the assessee has not filed objection or appeal the Tribunal can entertain any ground urged by the respondent assessee provided that relevant facts on record. The Ld. Counsel argued that the entire assessment proceedings is vitiated as the A.O. did not serve the mandatory notice u/s.143(2) within the period 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 inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not liable to be assessed, it can only refuse to increase the assessed income as only such an order would be within the scope of the appeal filed by the Department and another order such as annulling the assessment would be outside the scope of the appeal. That judgment holds that the position of an appeal under s. 33 of the IT Act and an appeal under the CPC is identical. A Full Bench of the Madras High Court has in Venkata Rao vs. Satyanarayanamurthy ILR 1944 Mad 147 : AIR 1943 Mad 698 (FB) held 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lete the assessment by following the procedure like issue of notice under s. 143(2)/142 and complete the assessment under s. 143 (3). This section does not provide for accepting the return as provided under s. 143(1)(a). The AC has to complete the assessment under s. 143(3) only. In case of default in not filing the return or not complying with the notice under s. 143(2)1142, the AC is authorized to complete the assessment ex parte under s. 144. Clause (b) of s. 158BC by referring to ss. 143(2) 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch provided in s. 165 has to be generally followed. The expression so far as may be has always been construed to mean that those provisions may be generally followed to the extent possible. The learned counsel for the respondent has brought to our notice the observations made by this Court in the case of Maganlal vs. Jaiswal Industries Ors. (1989) 4 SCC 344, wherein this Court while dealing with the scope and import of the expression as far as practicable has stated without anything more 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 repudi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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