TMI Blog2010 (3) TMI 1135X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of filing of the block return of income on 19/7/2000, the departmental appeal has to be dismissed. 3. Shri P.J.Pardiwala, Ld. Senior Advocate for the assessee submitted that notice under section 158 BC was issued to the assessee on 14/6/2000 and in response to this notice the assessee filed its return of income on 19/7/2000. He submitted that notice under section 143(2) as well as under section 142(1), alongwith questionnaires, was issued to the assessee on 15/10/2001. He filed the paper book running into 168 pages and drew the attention of the Bench to the copy of the notice under section 143(2) as well as under section 142(1), which is at page 63 and 64 of the assessee s paper book and pointed out that both the notices are dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to raise a new ground, provided it is a ground of law and does not necessitate any other evidence to be recorded. He produced the original notice under section 143(2) and pointed out that the date on the same is 15/10/2001 and not 15/10/2000. He further relied on an another judgment of Hon ble Bombay High Court in the case of CIT , City-I vs. Gilbert Barker Manufacturing Co. USA, 111 ITR 529. 6. Both the parties submitted that they would be filing written submission on the issue within one week. 7. Rival contentions heard. On a careful consideration of the facts and circumstances of the case and a perusal of the papers on record and the orders of the authorities below as well as the case laws cited we hold as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sir, Sub: Departmental appeal in the case of M/s. Simony Gems Vide ITA No.IT(SS)747/M/03-reg. Ref:- Your office letter No. CIT(DR)/ITAT/G-Bench/2009-10 Dated:18th May, 2009 ****** Kindly refer to the above. The case records of above assessee for block assessment reveals that the assessee had filed return for block period on 19/7/2000 in response of notice u/s. 158 of I.T. Act. After that the case was transferred to this charge from Spl.Range 48 on 12/10/2001. The notice u/s. 143(2) was issued only on 15/10/2001. The copy of the notice u/s. 143(2) is enclosed herewity. Submitted please. Yours faithfully (VINOD KUMAR) ACIT, Central Cir.11, Mumbai. Copy to: The Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast to his recording on the assessment order at page no.2 para no.5 that notices u/s. 143(2)/142(1) dated 15/10/2000 have been issued and served. If the actual date of notice is 15/10/2000 the department s case survives. If the actual date is 15/10/2001, the department s case will most likely be dismissed on limitation matter alone. You are therefore requested to look into this matter urgently, and direct the AO to send the Xerox copies of the entire order sheet nothings or preferably the entire assessment folder. This may be treated as the most urgent matter as this case, as a last chance, has been fixed for hearing tomorrow itself and therefore the reply/records are needed here today only. Encl: As abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 48 was in accordance with law? 14. The Hon ble High Court answered this question at page 245 as follows: The only question is whether the Tribunal was entitled to 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 Commissioner of Income-tax v. Hazarimal Nagji Co., after considering the relevant sections of the Income-tax Act and the relevant Rules made thereunder, held that the powers of the Appellate Tribunal are similar to the powers of an appellate court under the Civil Procedure Code. It has further held that the respondent in an appeal is undoubtedly entitled to support the decree which is in his favour on any grounds which are available to him, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se it on the ground that he was not liable to be assessed at all. The judgement points out however that if the Tribunal accepts the ground of defence that the assessee was 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 any other order such as annulling the assessment would be outside the scope of the appeal. That judgment holds that the position of an appeal under section 33 of the Income-tax Act and an appeal under the Code of Civil Procedure is identical .. If the ground succeeds, the only result would be that the appeal would fail. The acceptance of the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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