TMI Blog2018 (3) TMI 1591X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty or then before CIT (A) or then in appeal memo, is lost sight of. The impact of failure to raise it “so”, is also not evaluated. The question whether such a ground needed to be taken at the first available opportunity, the impact of failure to so raise it, therefore, need to be answered in present matter. The perusal of order passed by the I.T.A.T. does not show consideration of this aspect. The other contentions which pertain to merits of the matter, therefore, need not be gone into and cannot be gone into by this Court in present appeal. In present facts when the I.T.A.T. has not looked into the effect of omission to raise such a contention at the first available opportunity, we are inclined to answer the question in favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause notice issued by the assessing officer for penalty under Section 271(1)(c) of the Income Tax Act, 1961. On that day, hearing came to be adjourned to today. Today, Shri Jaiswal, learned Senior Advocate appearing for the assessee has sought adjournment to verify the position emerging after the judgment of the Income Tax Appellate Tribunal (I.T.A.T.) Bombay, in the case of Meherajee Cassinath Holdings Pvt. Ltd. vs. Assistant Commissioner of Income Tax, reported at (2017) 49 CCH 247 and judgment delivered by Pune Tribunal, in the case of Kanhaiyalal D. Jain vs. Assistant Commissioner of Income Tax, reported at (2016) 48 CCH 469 . His submission is, these judgments have looked into the Division Bench judgment of this Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Apex Court in the case of National Thermal Power Co. Ltd. vs. Commissioner of Income Tax, reported at 1996 (64) CCH 1401 . According to him, the revenue has effectively participated in hearing of Appeal by the I.T.A.T. 5. The question to be answered by this Court is only about the propriety on the part of and power with the I.T.A.T. to examine the ground raised before it orally for the first time. In Appeal Memo filed before this Court under Section 260A of the Income Tax Act, the questions of law are raised in para 10 and relevant question at sub-para (ii) is in this respect. During arguments, our attention was invited to the pleadings in para 9 to urge that the pleadings in para 9 show the factual background in which the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under : Under s. 254 of the IT Act the Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. The power of the Tribunal in dealing with appeals is thus expressed in the widest possible terms. The purpose of the assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in accordance with law. If, for example, as a result of a judicial decision given while the appeal is pending before the Tribunal, it is found that a nontaxable item is taxed or a permissible deduction denied, we do not see any reason why the assessee should be prevented from raising that question before the Tribunal for the first time, so long ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the authority imposing penalty or then before CIT (A) or then in appeal memo, is lost sight of. The impact of failure to raise it so , is also not evaluated. 11. The question whether such a ground needed to be taken at the first available opportunity, the impact of failure to so raise it, therefore, need to be answered in present matter. The perusal of order passed by the I.T.A.T. does not show consideration of this aspect. The other contentions which pertain to merits of the matter, therefore, need not be gone into and cannot be gone into by this Court in present appeal. 12. In present facts when the I.T.A.T. has not looked into the effect of omission to raise such a contention at the first available opportunity, we are incl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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