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TMI Blog2017 (11) TMI 1989X X X X Extracts X X X X X X X X Extracts X X X X ..... d in law. (b) The assessment order is invalid in law as notice u/s 153A is invalid. The initiation of assessment proceedings being not legal, consequent assessment is invalid. (c) The notice and assessment u/s 153A is not valid also for the reason that no incriminating material was found in the course of search. 2. The learned CIT{A) has failed to notice that the amount invested in the purchase of the site in Tirupati was only Rs. 1,05,84,000/- and not Rs. 1,22,09,495/-. The learned CIT(A) failed to notice that the Assessing Officer (AO) is inconsistent in holding one part of the sworn statement as correct and the other parts as not correct. The AO cannot approbate and reprobate. 3. The learned CIT(A) has erred in sustaining an addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CIT(A) be completely deleted." 2.1 The assessee has also filed the following revised additional grounds of appeal: "1. (a) The notice u/ s 143(2) issued on 20-10-2009 is barred by limitation under proviso to Sec 143(2)(ii) of the IT Act according to which no notice shall be served u/ s 143(2) six months after the end of the previous year in which returns is filed. The return was filed on 18-03-2009. The issue of notice is beyond the statutory period making it impossible to be served within the said period of six months which expired on 30-09-2009. (b) The ratio of the judgment of the Supreme Court in the case of CIT (Asst.) Vs Hotel Blue Moon Vs CITT (321 ITR 362) applies to the facts of the case. (c) As there was no notice u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;) accepting the returned income of the assessee. 6. The present AY is the year subsequent to block period i.e. AY 2002-03 to 2007-08. However, the AO had issued combined notices U/s 142(1) & 143(2) for the AYs 2002-03 to 2008-09. By following such notice u/s 153A, the assessee filed return of income on 18/03/2009 declaring the total income of Rs. 5,06,600/- and the income of the assessee was determined at Rs. 89,81,600/- by making various additions. When the assessee carried the matter in appeal before the CIT(A), the CIT(A) confirmed all the additions except the addition in respect of loan from NRI sister, which was deleted. 7. Aggrieved, the assessee is in appeal before us. 8. Before us, the assessee has raised a legal ground by wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed before the AO nor before the CIT(A) and the assessee cannot raise the same for the first time before the Tribunal. Further, he submitted that as per the provisions of section 292BB, the notices are deemed to be valid if there is any shortcomings in serving the same. He relied on the following cases: 1. CIT Vs. Premium Capital Market and others, [2005] 275 ITR 2. Aaravali Engineers (P) Ltd. Vs. CIT & Anr, 335 ITR 508 (P&H) 3. CIT Vs. Shri Kamaljeet Singh Ahluwalia, ITA No. 175/2009, dated 24/05/2017 (Jaipur High Court) 11. In the rejoinder, the ld. AR relied on the judgment of Hon'ble Jurisdictional High Court in the case of State of Andhra Pradesh Vs. Commercial Tax Officer, Kurnool, 169 ITR 564 to submit that when there are two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 292BB cannot cure jurisdictional error. 12.1 The ld. DR has relied on the cases (supra) including the case of Aaravali Engineers (P) Ltd. (supra), wherein the Hon'ble P&H High Court has laid down the rule that Appellate Authority can allow a question to be raised for the first time even if such a question was not raised at a lower forum, but, the discretion to do so has to be exercised in the interest of justice. Normally a question of fact may not be allowed to be raised for the first time as it may prejudice the other side. But as per the ratio laid down in NTPC case, the question of law can be raised at any stage. In the given case, it is not the issue of serving of notice but issue of notice to acquire jurisdiction to complet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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