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TMI Blog2018 (3) TMI 1591X X X X Extracts X X X X X X X X Extracts X X X X ..... cted to be placed for hearing on 28.02.2018. The question formulated by this Court then reads : "Whether on the facts and in the circumstances of the case and in law, Hon'ble ITAT was justified to entertain a ground by an oral submission without there being any specific ground raised before it and without any defence, submission and pleadings made by the assessee at the first instance before assessing officer, or before the CIT(A) with regard to his contention of defective show cause 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der appealed against, though he may not have challenged the adverse findings recorded therein. According to him, without giving revenue, which was not appellant before the I.T.A.T., necessary opportunity in this respect, such a course of action is not available. 4. Shri Jaiswal, learned Senior Advocate has invited our attention to the questions raised in memo of appeal under Section 260A of the Income Tax Act, 1961, before this Court and the judgment of the Hon'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 abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it reads as under : "Where on the facts found by the authorities below a question of law arises (though not raised before the authorities) which bears on the tax liability of the assessee, whether the Tribunal has jurisdiction to examine the same ?" 9. The Hon'ble Apex Court in para 2 has observed that it was not answering the question relating to merits of the contentions additionally sought to be raised. In para 3, it has observed as 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer and did not raise any question, going to its root, at the earliest or even before the Commissioner of Income Tax (Appeal). Even before I.T.A.T. while opposing the order, no such effort was made and orally the contentions based upon omission to strike down some part or portion in notice, not applicable in the matter, were raised. Thus, the fact that such an objection which should have been raised at the earliest, was not raised before 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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