Appeal details
Counselvise Citation
[2015] 140 COUNSELVISE.COM (IT) 86993 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
5 year(s) 24 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
20-03-2015
Appeal Filed By
Department
Order Result
Allowed
Bench Allotted
B
Next Hearing Date
17-03-2015
Assessment Year
2003-2004
Appeal Filed On
26-02-2010
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B : NEW DELHI) BEFORE SHRI GEORGE GEORGE K, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER 1. ITA NO.201/DEL./2010 (ASSESSMENT YEAR : 2000-01) 2. ITA NO.202/DEL./2010 (ASSESSMENT YEAR : 2001-02) 3. ITA NO.203/DEL./2010 (ASSESSMENT YEAR : 2002-03) 4. ITA NO.428/DEL./2010 (ASSESSMENT YEAR : 2003-04) 5. ITA NO.810/DEL./2010 (ASSESSMENT YEAR : 2004-05) FERNS N PETALS INDIA (P) LTD., VS. DCIT, CENTRA L CIRCLE 10, FNP GARDENS, MANDI ROAD, NEW DELHI. SULTANPUR, NEW DELHI 110 030. (PAN : AAACF4885D) 6. ITA NO.481/DEL./2010 (ASSESSMENT YEAR : 2000-01) 7. ITA NO.482/DEL./2010 (ASSESSMENT YEAR : 2001-02) 8. ITA NO.483/DEL./2010 (ASSESSMENT YEAR : 2002-03) 9. ITA NO.836/DEL./2010 (ASSESSMENT YEAR : 2003-04) 10. ITA NO.456/DEL./2010 (ASSESSMENT YEAR : 2004-05) ITA NOS.201 TO 203, 428 & 810/DEL./2010 ITA NOS.481 TO 483, 836 & 456/DEL./2010 2 DCIT, CENTRAL CIRCLE 10, VS. FERNS N PETALS INDI A (P) LTD., NEW DELHI. FNP GARDENS, MANDI ROAD, SULTANPUR, NEW DELHI 110 030. (PAN : AAACF4885D) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJESH JAIN, CA REVENUE BY : SMT. POONAM KHAIRA SIDHU, CIT DR DATE OF HEARING : 19.03.2015 DATE OF PRONOUNCEMENT : .03.2015 ORDER PER BENCH : ALL THESE CROSS APPEALS FILED BY THE ASSESSEE AND T HE REVENUE EMANATE FROM THE ORDERS OF THE CIT (APPEALS)-II, NE W DELHI. 2. THE ASSESSEE IS A PRIVATE LIMITED COMPANY ENGAGE D IN THE BUSINESS OF ORGANIZING AND MANAGING MARRIAGES, OTHER FUNCTIONS AND EVENT DECORATION OF FLOWERS BESIDES ERECTION OF SETS, ETC. ETC. A S EARCH AND SEIZURE OPERATION WAS CARRIED OUT ON THE ASSESSEES PREMISES ON 23.12 .2005. IN ALL THESE ASSESSMENT YEARS, THE ASSESSING OFFICER MADE ADDITI ONS WHICH HAVE BEEN PARTLY DELETED BY THE CIT (A). NOW, BOTH THE SIDES ARE IN APPEAL BEFORE US. 3. THE ASSESSEE HAS SUBMITTED AN APPLICATION FOR AD MITTING THE ADDITIONAL GROUND IN ALL THE ASSESSMENT YEARS. THE GROUND OF APPEAL WHICH IS COMMON IN ALL THE ASSESSMENT YEARS READ AS UNDER :- ITA NOS.201 TO 203, 428 & 810/DEL./2010 ITA NOS.481 TO 483, 836 & 456/DEL./2010 3 ON THE FACTS OF THE CASE AND AS PER LAW, THE LEARN ED CIT (A) ERRED IN UPHOLDING VARIOUS ADDITIONS MADE BY THE ASSESSIN G OFFICER IN THE RETURNED INCOME DURING THE COURSE OF ASSESSMENT U/S 153A READ WITH SECTION 143(3) OF THE ACT, WHICH ARE NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH ON THE APPELLANT, AND CONTRARY TO THE RATIO OF VARIOUS JUD ICIAL PRECEDENTS WHICH HAVE HELD THAT THE SCOPE OF ASSESSMENT WHICH ARE NOT PENDING AT THE TIME OF CONDUCTING OF SEARCH U/S 153A OF THE ACT, ENCOMPASSES ADDITIONS/ DISALLOWANCE, BASED ON INCRI MINATING MATERIAL FOUND DURING THE COURSE OF SEARCH ONLY. IT WAS PLEADED THAT ASSESSEE MAY BE PERMITTED TO R AISE THE ADDITIONAL GROUND WHICH GOES TO THE ROOT OF THE MATTER AND CLE ARLY TRANSPIRES FROM THE PROCEEDINGS BEFORE THE LOWER AUTHORITIES WITH COMPL ETE FACTS ON RECORD AND RELIANCE WAS PLACED ON THE DECISION OF HONBLE SUPR EME COURT IN THE CASE OF NATIONAL THERMAL POWER COMPANY LIMITED VS. CIT 229 ITR 383 (SC). LD. AR ALSO RELIED ON VARIOUS DECISIONS OF H ONBLE HIGH COURTS AND ITAT WITH REGARD TO THE ADDITIONS AND DISALLOWANCES IN ASSESSMENTS U/S 153A OF THE INCOME-TAX ACT, 1961 WHERE ASSESSMENTS ARE NOT ABATED IN TERMS OF SECOND PROVISO TO SECTION 153A(1) OF THE A CT WHICH ENCOMPASSES ADDITIONS/DISALLOWANCES, BASED ON INCRIMINATING MAT ERIAL FOUND DURING THE COURSE OF SEARCH ONLY. 4. LD. DR SUBMITTED A PAPER BOOK CONTAINING 171 PAG ES AND SUBMITTED THAT THE INCRIMINATING MATERIAL SEIZURE DURING THE SEARCH IS PLACED AT PAGES 1 TO 37 OF THE PAPER BOOK. SHE HAS ALSO RELIED ON THE DECISION OF ITAT, DELHI BENCH IN THE CASE OF DCIT VS. APOORVA EXTRUSI ON PVT. LTD. IN ITA NO.3308/DEL/2010 DATED 09.10.2014 FOR ASSESSMENT YE AR 2002-03 WHICH IS ITA NOS.201 TO 203, 428 & 810/DEL./2010 ITA NOS.481 TO 483, 836 & 456/DEL./2010 4 PLACED AT PAGES 38 TO 52 OF THE PAPER BOOK AND DREW OUT ATTENTION TO PARA 8 OF THE ORDER WHICH IS REPRODUCED BELOW :- 8. WE CAN REJECT THE CONTENTION OF THE ASSESSEE FR OM ANOTHER ANGLE AS WELL. IT IS RELEVANT TO NOTE THAT THE EXPR ESSION BOOKS OF ACCOUNT OR DOCUMENTS EMPLOYED IN SECTION 153C(1) I S ACCOMPANIED BY THE WORDS MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES OR THING. IT IS AXIOMATIC THAT MONEY OR JEWELLERY ETC. BELONGING TO THE OTHER PERSON FOUND FROM THE P REMISES OF THE PERSON SEARCHED CANNOT PER SE BE RELATED TO A PARTI CULAR ASSESSMENT YEAR. IF WE TEST THE CONTENTION OF THE LD. AR ON TH E TOUCHSTONE OF MONEY OR JEWELLERY ETC. BELONGING TO THE ASSESSEE FOUND FROM THE PERSON SEARCHED, THEN IT WILL BE VERY DIFFICULT AT THE STAGE OF INITIATION OF ASSESSMENT OR REASSESSMENT OF THE OTH ER PERSON TO RELATE IT TO A PARTICULAR YEAR, THEREBY JEOPARDIZING THE W HOLE SCHEME OF ASSESSMENT PURSUANT TO SEARCH OR REQUISITION. TO A SPECIFIC QUERY, IT WAS CANDIDLY ACCEPTED BY THE LD. AR THAT IN TERMS O F SECTION 153A, THE INITIATION OF ASSESSMENT OR REASSESSMENT FOR AL L THE SIX ASSESSMENT YEARS IN THE CASE OF PERSON SEARCHED IS NOT DEPENDENT ON THE FINDING OF ANY INCRIMINATING MATERIAL. IT IS BE YOND OUR COMPREHENSION THAT WHEN SUCH A COURSE OF ACTION IS PERMISSIBLE U/S 153A IN THE CASE OF PERSON SEARCHED, THEN HOW CAN T HERE BE ANY BAR ITA NO.3308/DEL/2010 CO NO.303/DEL/2010 11 ON THE I NITIATING OR MAKING OF ASSESSMENT OR REASSESSMENT FOR SOME OF TH E YEARS OF OTHER PERSON, MORE SO, WHEN SECTION 153C(1) HAS BEE N EXPRESSLY MADE TO ACCORD WITH THE PROVISIONS OF SECTION 153A. WE, THEREFORE, JETTISON THE CONTENTION URGED ON BEHALF OF THE ASSE SSEE AS SANS MERIT. SHE ALSO RELIED ON THE DECISION OF HONBLE DELHI HI GH COURT IN THE CASE OF FILATEX INDIA LTD. VS. CIT IN ITA NO.269/2014 AND C M NO.10077/2014 ORDER DATED 14.07.2014 WHICH IS PLACED AT PAGES 53 TO 63 OF THE PAPER BOOK. RELIANCE WAS ALSO PLACED ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANIL KUMAR BHATIA REPO RTED IN (2012) 211 TAXMAN 453 (DELHI) AND OUR ATTENTION WAS DRAWN TO P ARAS 18 TO 23 OF THIS ORDER. LD. DR ALSO RELIED ON THE DECISION OF HONBL E KARNATAKA HIGH COURT ITA NOS.201 TO 203, 428 & 810/DEL./2010 ITA NOS.481 TO 483, 836 & 456/DEL./2010 5 IN THE CASE OF CANARA HOUSING DEVELOPMENT COMPANY V S. DCIT IN ITA NO.38/2014 ORDER DATED 25.07.2014 WHICH IS PLACED A T PAGES 82 TO 99 OF THE PAPER BOOK. RELIANCE WAS ALSO PLACED ON THE DE CISION OF ITAT, BANGALORE BENCH C IN THE CASE OF NANDINI DELUX VS . ACIT REPORTED IN (2015) 54 TAXMANN.COM 162 (BANGALORE TRIB.) AND THE COPY IS PLACED AT PAGES 100 TO 118 OF THE PAPER BOOK. SHE ALSO SUBMI TTED THAT ASSESSEE HAS NOT SUBMITTED ALL THE RELEVANT DOCUMENTS BEFORE THE ASSESSING OFFICER AND HAS BEEN SUBMITTED BEFORE THE CIT (A) AS ADDITIONAL EVIDENCE BY FILING AN APPLICATION U/S 46A OF INCOME-TAX RULES. SHE HAS A LSO DRAWN OUR ATTENTION TO THE STATEMENT RECORDED DURING SEARCH OPERATION W ITH REFERENCE TO THE SEIZED MATERIAL OF SHRI PAWAN GADIA AND TOOK THROUG H QUESTIONS / ANSWERS NO.15, 16, 19, 20, 21, 22, 23, 24 AND 25 OF THE STATEMENT. SHE HAS ALSO SUBMITTED A WRITTEN SUBMISSIONS AND RELEVANT P ORTIONS ARE REPRODUCED HEREUNDER :- DETAILS OF INCRIMINATING MATERIAL PERTAINING TO CA SH SALES UNDERSTATEMENT AND INFLATION OF PURCHASES WERE FOUN D DURING SEARCH AND THE DEPARTMENT HAS LENT EVIDENCE IN SUPPORT OF THIS. EVIDENCE FOUND DURING A SEARCH SHED LIGHT ON THE SUPPRESSION OF SALES BY ASSESSEE AND INFLATION OF PURCHASES. PERUSAL OF LIST OF INCRIMINATING DOCUMENTS ON PAPER BOOK WILL INDICATE BEYOND REASON ABLE DOUBT THAT THESE EVIDENCE SUPPRESSION OF CASH SALES AND OTHER ADDITIONS OF INFLATION OF CASH PURCHASES AND UNVERIFIABLE CREDITS ON ACCOU NT OF WHICH ADDITIONS HAVE BEEN MADE IN THE ASSESSMENT ORDERS IN THE 6 YE ARS UNDER REFERENCE. THE CASH VOUCHERS/ INVOICES ETC AND DETAILS OF LAPT OP ETC PERTAINING TO DATES FROM 2002 TO 2005 AT PAGES 1-37 OF DEPARTMENT AL PAPER BOOK CONSTITUTE INCRIMINATING MATERIAL. APPELLANT HAS HO WEVER FAILED TO DISCHARGE THE ONUS OF SATISFYING THE AO THAT THESE PAPERS WERE DULY INCORPORATED IN REGULAR BOOKS AND ACCOUNTS SINCE HE FAILED TO PRODUCE BOOKS OR VOUCHERS BEFORE AO. APPELLANT FAILED TO FU RNISH ADDRESSES OF PARTIES WHO WERE SUMMONED AND THOSE PARTIES WHOSE A DDRESSES WERE FURNISHED FAILED TO RESPOND TO SUMMONS U/S 133(6) I SSUED BY AO. ITA NOS.201 TO 203, 428 & 810/DEL./2010 ITA NOS.481 TO 483, 836 & 456/DEL./2010 6 EVEN IN RAJ KUMAR ARORA THE HONBLE DELHI HIGH COURT AT PARA 29 HAS HELD: PARA 29 IT IS NOT, THEREFORE, POSSIBLE TO COUNTENANCE THE D ECISION OF THE TRIBUNAL. DOCUMENTS WERE FOUND IN THE ASSESSEES POSSESSION A ND WERE RECOVERED FROM HIM. THE PRIMARY DUTY WAS THEREFORE, UPON THE ASSESSEE TO EXPLAIN THEM. THE ASSESSEE FAILED TO DISCHARGE THIS ONUS AND AS P ERUSAL OF INDEXES PLACED ON PAPER BOOK AT PAGES 119-139, WILL SHOW TH AT MOST OF THE EVIDENCE WAS FILED UNDER RULE 46A AS ADDITIONAL EVI DENCE BEFORE THE CIT (A). THE AO STRONGLY OBJECTED TO THIS SINCE THERE W AS NO REASONABLE CAUSE FOR THE APPELLANT NOT HAVING FILED THESE BEFO RE AO DESPITE SPECIFIC OPPORTUNITY THESE WERE NOT ADMISSIBLE AS PER RULES. THUS MOST OF THE EVIDENCE ON THE BASIS OF WHICH RELIEF HAS BEEN ALLO WED HAVE NEVER BEEN EXAMINED BY AO. (REFER PAGE NO 119-139 OF DEPARTME NTAL PAPER BOOK, BEING INDEX TO PAPER BOOKS FILED BY THE APPEL LANT WHICH CLEARLY SHOW THAT MOST OF THE EVIDENCE WAS FILED AS ADDITIO NAL EVIDENCE IN VIOLATION OF RULE 46A BEFORE CIT (A). EVEN THE CIT (A) HAS GIVEN THE FINDING THAT THE LED GER ACCOUNTS PRODUCED SHOW NO BILL NUMBERS. ONLY DATE OF CHALLAN IS MENTI ONED AND SUPPORTED BY SELF MADE VOUCHERS ( REFER PARA 7.3 ONWARDS) TO SUPPORT PURCHASES. APPELLANT HAS FILED PAN AND COPIES OF BILLS WHILE C IT (A) HAS HELD THAT THESE ARE REGULAR PURCHASES FROM THIS PARTY- WHY TH EN WAS THE PARTY NOT AVAILABLE AT THE ADDRESS GIVEN TO AO OR DID NOT RES POND TO THE 133(6) NOTICES? DELHI HIGH COURT IN THE CASE OF NAVODAYA CASTLES P LTD 367 ITR 306 HAS HELD THAT .. ASSESSEE CANNOT SIMPLY FURNISH SOME DETAILS AND REM AIN QUIET WHEN SUMMONS ISSUED TO SHAREHOLDERS REMAIN UN-SERVED AND UNCOMPLIED . CREDITWORTHINESS IS NOT PROVED BY SHOWING ISSUE AND RECEIPT OF A CHEQUE OR BY FURNISHING A COPY OF STATEMENT OF BANK ACCOUN T, WHEN CIRCUMSTANCES REQUIRE THAT THERE BE MORE EVIDENCE O F A POSITIVE NATURE TO SHOW THAT THE SUBSCRIBERS HAD MADE GENUINE INVESTME NT OR HAD ACTED.. IN NR PORTFOLIO P LTD 264 CTR 258 DEL THE HIGH COUR T HELD THAT THE IDENTIFICATION OF THE PERSON WOULD INCLUDE THE PLACE OF WORK, THE STAFF, THE FACT THAT IT WAS ACTUALLY CARRYING ON BU SINESS AND RECOGNITION OF THE SAID COMPANY IN THE EYES OF PUBLIC. MERELY PROD UCING PAN NUMBER OR ASSESSMENT PARTICULARS DID NOT ESTABLISH THE IDENTI TY OF THE PERSON. ITA NOS.201 TO 203, 428 & 810/DEL./2010 ITA NOS.481 TO 483, 836 & 456/DEL./2010 7 CIT(A) HIMSELF HAS HELD THAT CONFIRMATION IN THE CA SE OF SWAPAN KUMAR MAITI AND OTHERS DOES NOT APPEAR TO BE IN ORDER AND DIRECTED AN ENHANCEMENT TO BE MADE. FINALLY STATEMENTS U/S 132(4) RECORDED DURING THE S EARCH WHEREIN CERTAIN FACTS ARE RECORDED FROM THE INTERPRETATION OF WHICH AO COULD CONCLUDE THAT THERE WAS SOME UNDISCLOSED INCOME THE N THAT STATEMENT C AN BE CONSIDERED AS INCRIMINATING MATERIAL. MGF AUTOMO BILES LTD DT 28 TH JUNE 2013 ITAT DELHI E BENCH. ATTENTION IS INVITED TO STATEMENT PLACED AT DEPARTMENTAL PAPER BOOK PAGES 159- 169 AN D SUPPORTING INCRIMINATING DOCUMENTS AT PAGES 140-158. ARGUMENTS WITHOUT PREJUDICE THAT AN ADDITIONAL LEGA L GROUND CANNOT BE RAISED BEFORE THE TRIBUNAL AS A MATTER OF RIGHT IT IS HUMBLY SUBMITTED THAT BEFORE THE TRIBUNAL, AP PEALS AGAINST THE ORDERS OF THE FIRST APPELLATE AUTHORITY I.E. THE CO MMISSIONER OF INCOME (APPEALS) ARE CARRIED. THUS ONLY SUCH GROUNDS OR IS SUES CAN BE RAISED BEFORE THE ITAT WHICH ARISE FROM {THE CIT(A)'S ORDE RS. THE GROUND OR PLEA REGARDING LACK OF INCRIMINATING EVIDENCE FOUND DURING A SEARCH, CANNOT BE SAID TO BE ARISING OUT O F THE ORDER OF THE CIT (A)SINCE THIS WAS NEVER RAISED BEFORE THE LOWER AUT HORITIES. IT IS REVENUES CONTENTION THAT SUCH A GROUND CANNOT NOW BE RAISED BEFORE THE TRIBUNAL.PERUSAL OF APELLANTS FORM NO 35 AND 36 WI LL CONFIRM THIS POSITION. THE REASON FOR THIS ASSERTION IS EXPLAINED IN SOME DETAIL BELOW: CALCUTTA HIGH COURT JUDGMENT IN THE CASE OF INDIAN STEEL AND WIRE PRODUCTS LTD. V. CIT {1994} 208 ITR 740 CAL ( 17-06 -1993) INTER ALIA HELD; ' THE TRIBUNAL IS SUPPOSED TO DECIDE ONLY ISSUES WHIC H WERE THE SUBJECT MATTER OF THE FIRST APPEAL. OTHERWISE, THE TRIBUNAL WOULD BE REDUCED TO THE FIRST APPELLATE AUTHORITY.' HOWEVER, IN VIEW OF APEX COURT JUDGMENTS THERE IS A NOW UNANIMITY THAT PURELY A LEGAL GROUND CAN BE RAISED AT ANY POINT OF TIME INCLUDING DURING THE SECOND APPEAL BEFORE THE TRIBUNAL AS A MAIN GRO UND OR AS AN ADDITIONAL GROUND, IF THE RELEVANT FACTS ARE ALREAD Y ON RECORD IN RESPECT OF THAT . IN THE CONTEXT OF RAISING OF ADDITIONAL GROUND MO ST RELIED UPON JUDGMENT IS NTPC LTD. V. CIT 2002-TIOL-279-SC-IT-LB {HENCEFORTH 'NTPC CASE') WHEREIN APPLYING ITS EARLIER DECISION IN THE CASE OF JUTE CORPORATION OF INDIA LTD 2002-TIOL-1027-SC-IT-LB {FOR SHORT 'JUTE CORPORATION CASE} APEX COURT HELD AS UNDER; 'U/S 254 POWER OF THE TRIBUNAL IN DEALING WITH APPE ALS IS THUS EXPRESSED IN THE WIDEST POSSIBLE TERMS. THE PURPOSE OF THE ASSESSMENT ITA NOS.201 TO 203, 428 & 810/DEL./2010 ITA NOS.481 TO 483, 836 & 456/DEL./2010 8 PROCEEDINGS BEFORE THE TAXING AUTHORITIES IS TO ASS ESS CORRECTLY THE TAX LIABILITYWE DO NOT SEE ANY REASON WHY THE ASSESS EE SHOULD BE PREVENTED FROM RAISING THAT QUESTION BEFORE THE ITA T FOR THE FIRST TIME, SO LONG AS THE RELEVANT FACTS ARE ON RECORD IN RESP ECT OF THAT ITEM..THE TRIBUNAL HAS JURISDICTION TO EXAMINE A QUESTION OF LAW WHICH ARISES FROM THE FACTS AS FOUND BY THE AUTHORITIES BELOW AN D HAVING A BEARING ON THE TAX LIABILITY OF THE ASSESSEE.' HOWEVER THIS DECISION IS RENDERED IN THE CONTEXT OF FACTUAL SHORT MATRICES OF THE NTPC CASE WHICH WERE THAT FOR THE F IRST TIME BEFORE THE TRIBUNAL, IN VIEW OF TWO ORDERS OF THE SPECIAL BENC H OF THE TRIBUNAL, ASSESSEE CONTENDED THAT INTEREST EARNED BEFORE SETT ING UP OF BUSINESS IS NOT TAXABLE. THE TRIBUNAL DECLINED TO ENTERTAIN THE SE ADDITIONAL GROUNDS. INSTEAD OF EXAMINING THE GROUNDS SO FRAMED BY THE T RIBUNAL, THE SUPREME COURT REFRAMED THE QUESTION FOR ITS CONSIDE RATION AS UNDER; 'WHERE ON THE FACTS FOUND BY THE AUTHORITIES BELOW A QUESTION OF LAW ARISES (THOUGH NOT RAISED BEFORE THE AUTHORITIES) W HICH BEARS ON THE TAX LIABILITY OF THE ASSESSEE, WHETHER THE TRIBUNAL HAS JURISDICTION TO EXAMINE THE SAME . OBSERVING THAT THE TRIBUNAL IN DEALING WITH THE APP EALS HAS WIDEST POSSIBLE POWERS AND THAT PURPOSE OF ASSESSMENT BEFO RE TAXING AUTHORITIES IS TO ASSESS CORRECTLY THE TAX LIABILITY SUPREME CO URT VIEWED AS UNDER; ' WE DO NOT SEE ANY REASON WHY THE ASSESSEE SHOULD BE PREVENTED FROM RAISING THAT QUESTION BEFORE THE TRIBUNAL FOR THE F IRST TIME, SO LONG AS RELEVANT FACTS ARE ON RECORD IN RESPECT OF THAT ITE M.' 'WE FAIL TO SEE WHY THE TRIBUNAL SHOULD BE PREVENTE D FROM CONSIDERING QUESTIONS OF LAW ARISING IN ASSESSMENT PROCEEDINGS ALTHOUGH NOT RAISED EARLIER.' SUPREME COURT WHILE OBSERVING SO TOOK NOTE AND SUPP ORT OF ITS EARLIER JUDGMENT IN JUTE CORPORATION CASE WHERE SUPREME COU RT HAD IN DEALING WITH THE POWERS OF APPELLATE ASSISTANT COMMISSIONER OBSERVED THAT AN APPELLATE AUTHORITY HAS ALL THE POWERS THAT THE ORI GINAL AUTHORITY MAY HAVE IN DECIDING THE QUESTION BEFORE IT SUBJECT TO RESTR ICTIONS OR LIMITATIONS, IF ANY. WHEN THE FACT MATRICES OF THE PRESENT CASE ARE SUCH AND SO CLEARLY DISTINGUISHABLE, NTPC CAN SCARCELY APPLY PARTICULAR LY WHEN THIS GROUND WAS NOT RAISED IN PROCEEDINGS BEFORE EITHER AO OR C IT(A).IN THE CONTEXT OF THE NTPC JUDGMENT IT WILL BE RELEVANT TO NOTE TH AT IN JUTE CORPORATION CASE THE SUPREME COURT, IN TURN, HAD CONSIDERED ITS OWN JUDGMENT IN CIT (ADDL.) V. GURJARGRAVURES P. LTD (1978) 111 ITR 1 { FOR SHORT 'GURJARGRAVURES CASE'} WHICH THE SUPREME COURT VIEWED TO BE IN CONFLICT WITH ITS EARLIER LARGER BENCH JUDGMENT IN CIT V. KANPUR COAL SYNDICATE - 2002-TIOL-828-SC-IT-LB {FOR SHORT 'KANPUR COAL CAS E'} . THE ITA NOS.201 TO 203, 428 & 810/DEL./2010 ITA NOS.481 TO 483, 836 & 456/DEL./2010 9 SUPREME COURT HELD THAT LARGER BENCH DECISION IN KA NPUR COAL CASE HOLDS THE FIELD. HOWEVER, WHILE HOLDING SO IT DID N OT SPECIFICALLY OVER RULE GURJARGRAVURES CAS E AS IN THEIR OPINION THIS DECISION WAS FOUNDED ON THE SPECIAL FACTS OF THAT CASE. IMPORTANT POINT TO BE NOTED IS THAT IN KANPUR COAL CASE THE ISSUE WAS SPECIFICALLY RAISED BEFORE THE AO WHEREAS IN THE JU TE CORPORATION & NTPC CASES THE ISSUES WERE NEVER EVER RAISED BEFORE THE AO. IF THIS IMPORTANT DIFFERENCE IN FACTUAL MATRICES IS KEPT IN VIEW, THE HONBLE BENCH WILL BE ABLE TO APPRECIATE THE SUPREME COURT JUDGMENT IN NTPC CASE IN ITS CORRECT PERSPECTIVE. HAD THEIR LORDSHIP S OF THE SUPREME COURT BEEN MADE AWARE ABOUT THIS CRUCIAL AND IMPORTANT DI FFERENCE IN FACT SITUATION, THEIR JUDGMENTS IN JUTE CORPORATION CASE AS WELL AS IN NTPC CASE WOULD HAVE BEEN DIFFERENT. THUS, IT IS VERY CL EAR THAT SUBSEQUENT JUDGMENTS OF THE SUPREME COURT NEED TO BE APPLIED I N CORRECT PERSPECTIVE ESPECIALLY WHEN GURJARGRAVURES HAS NOT BEEN OVERRUL ED BECAUSE IN THESE NTPC & JUTE CORPORATION CASES WHILE APPLYING KANPUR COAL CASE INADVERTENTLY IT HAS BEEN OVER LOOKED THAT IN THIS (KANPUR COAL) CASE BEFORE THE AO THERE WAS SPECIFIC CLAIM WHICH HE REF USED TO ENTERTAIN. THUS REVENUE CONTENDS THAT SWEEPING PRINCIPLE CANNO T AT ALL BE INFERRED FROM SUPREME COURT JUDGMENTS IN NTPC & JUTE CORPORA TION CASES WHEN SUPREME COURT JUDGMENT IN GURJARGRAVURES CASE WHICH BARS RAKING UP OF AN ISSUE AT A LATER STAGE , IF NOT RAISED EARLIER, HAS NOT SPECIFICALLY BEEN OVER RULED. THUS NTPC OR FOR THAT MATTER JUTE CORPO RATION CASES THOUGH OF LARGER BENCH CANNOT ALWAYS BE GIVEN PREFERENCE O VER GURJARGRAVURES CASE BECAUSE BY NOT OVER-RULING IT, LATER BENCHES OF THE SUPREME COURT AGREED WITH THE PROPOSITION AS EXPLAINED IN GURJARG RAVURES CASE . IN THE CONTEXT OF THE TRIBUNAL THERE IS NO WHISPER IN LAW AS TO WHAT ALL THE TRIBUNAL CAN DO WHILE ADJUDICATING AN APPEAL. QUITE OPPOSITE TO THE DETAILED MENTION OF SCOPE ABOUT AS WHAT ALL THE CIT (A) CAN DO WHILE DISPOSING AN APPEAL, LEGISLATURE JUST USES THE PHRA SE 'AS THINKS FIT'. IF WE BEAR IN MIND THE POWERS CONFERRED ON THE CIT(A) WHO IS CONFERRED PLENARY POWERS INCLUDING THE POWERS OF AO, THE PHRA SE 'AS THINK FIT' CAN ONLY GIVE THE VERY SAME CONNOTATION AS IT WILL HAVE IN THE CONTEXT OF THE CIT(A) EXCEPTING TO ENHANCE THE ASSESSMENT . THE WORD ' THEREON ' AS USED IN THE PHRASEOLOGY OF SECTION 254(1) ' APPELLATE TRIBUNAL MAY PASS SUCH ORDERS THEREON AS IT THINKS FIT' AS EXPLAINED BY GAUHATI HIGH COURT IN JEYPORE TIMBER & VENEER MILLS P. LTD. V. CIT 137 IT R 416 'IMPLIES SERIOUS CONSTRICTION ON THE EXERCISE OF THE POWER B Y THE TRIBUNAL WHICH MEANS IT CAN DECIDE ONLY THE POINTS OR GROUNDS RAIS ED BEFORE IT WHEREAS THE I.T. AUTHORITIES CAN TRAVEL BEYOND THE GROUNDS AND CONSIDER THE ENTIRE ASSESSMENT.' THE VERY FACT THAT ITAT CANNOT ENHANCE THE ASSESSME NT GOES TO SHOW THAT TRIBUNAL'S POWERS IN FACT ARE NOT AS WIDE AS THEY A RE PERCEIVED TO BE. IF THE SUPREME COURT JUDGMENT IN CIT V. ASSAM TRAVELS SHIPPING SERVICE 2002-TIOL-702-SC-IT IS TAKEN NOTE OF PHRASE ' AS IT THINKS ITA NOS.201 TO 203, 428 & 810/DEL./2010 ITA NOS.481 TO 483, 836 & 456/DEL./2010 10 FIT' CAN BE SAID TO BE WIDE ENOUGH JUST TO INTER ALIA REMAND THE MATTER TO THE AUTHORITY TO MAKE THE REQUISITE ORDER. TRIBUNAL 'S POWERS ARE NOT SO WIDE AS TO GO BEYOND THE MANDATE AVAILABLE WITH THE AO OR FOR THAT MATTER WITH THE CIT(A). THUS THE APPELLATE AUTHORIT Y CANNOT ENABLE THE AO TO DO SOMETHING WHICH HE COULD NOT HAVE DONE IN LAW BECAUSE OF LAPSE OF TIME OR BECAUSE OF OTHER LEGAL RESTRICTION S. IN OTHER WORDS, SCOPE IS LIMITED TO AS TO WHAT THE AO HAS DONE OR OUGHT T O HAVE DONE IN THE LIGHT OF THE FACTS AS AVAILABLE WITH HIM AS ON THE DATE OF PASSING THE ASSESSMENT ORDER. WHILE DOING INTERPRETATION OF ANY JUDGMENT THIS FUNDAMENTAL AND SETTLED PRINCIPLE CANNOT BE OVERLOO KED. NTPC CASE ALLOWS RAKING UP OF LEGAL GROUND ONLY IN A LIMITED WAY: BEFORE PRESSING INTO SERVICE THE NTPC JUDGMENT AS A SHORT CUT TO FULLY EXAMINE FACTS AND CIRCUMSTANCES OF THE CASE SO AS T O RAISE AND ADMIT ANY ADDITIONAL LEGAL GROUND BEFORE THE TRIBUNAL ETC. WE SHOULD NOT LOSE SIGHT OF THE SUPREME COURT'S OWN VIEW AS ECHOED IN ITS VA RIOUS JUDGMENTS. IN UNION OF INDIA V. MAJOR BAHADUR SINGH (2006) 1 SCC 368 {PARA 9 & 11} SUPREME COURT HELD THAT THE OBSERVATIONS MADE IN A JUDGMENT MUST BE READ IN THE CONTEXT IN WHICH THEY APPEAR TO HAVE BE EN STATED. THEIR LORDSHIPS OF THE SUPREME COURT FURTHER HELD THAT CI RCUMSTANTIAL FLEXIBILITY, ONE ADDITIONAL OR DIFFERENT FACT, MAY MAKE A WORLD OF DIFFERENCE BETWEEN CONCLUSIONS IN TWO CASES. DISPOS AL OF CASE BY BLINDLY PLACING RELIANCE ON A DECISION WAS HELD TO BE NOT PROPER. WITH THIS PREFACE, IT IS FELT THAT BEFORE EMBARKING UPON TO RELY ON NTPC CASE ITS FACTUAL MATRICES SHOULD NOT BE LOST SIGHT OF. FOR APPLYING THIS JUDGMENT FOLLOWING NEEDS TO BE CUMULATIVELY SATISFI ED; (A) ALL FACTS RELEVANT TO THE ISSUE SHOULD HAVE BEEN FO UND BY THE LOWER AUTHORITIES. (B) ADDITIONAL GROUND PROPOSED (I) SHOULD BE A QUESTION OF LAW AND (II) IT SHOULD BE EMERGING OUT OF THE FACTS FOUND O UT BY THE AO/CIT(A). (C) ADDITIONAL GROUND SHOULD BE THE ONE WHICH COULD NOT BE RAISED EARLIER FOR BONAFIDE REASONS. (D) ADDITIONAL GROUND SHOULD HAVE A BEARING ON THE QUANTIFICATION OF THE TAXABLE INCOME. IN SHORT, OTHER GROUNDS LIKE THE ISSUE RELATING TO ASSUMPTION OF JURISDICTION OR OF LIMITATION OR OF ISSUANCE OF NOT ICES ETC WHICH AS SUCH HAVE NO DIRECT RELATIONSHIP OR BEARING ON THE QUANT IFICATION OF THE TAX LIABILITY CANNOT BE RAKED UP BEFORE THE ITAT EVEN W ITH THE ASSISTANCE OF THE NTPC CASE. NOT RAKING UP THESE ISSUES AT EARLIER STAGES WOULD SIMPLY MEAN THAT THERE WAS CONSCIOUS OR IMPLIED WAIVER THAT IS WHY THERE W AS PARTICIPATION BY THE ASSESSEE BEFORE THE AO. IN THIS CONTEXT, REFERE NCE CAN BE MADE OF THE ITA NOS.201 TO 203, 428 & 810/DEL./2010 ITA NOS.481 TO 483, 836 & 456/DEL./2010 11 SUPREME COURT JUDGMENT IN HIRALAL V. KALINATH AIR 1962 SC 199 WHERE IT WAS HELD THAT IF OBJECTION TO JURISDICTION IS WA IVED THE PARTY IS PRECLUDED FROM RAKING IT UP LATER. IT IS FOR THIS R EASON THAT IN SUSHIL KUMAR JALAN V. ITO ITA 34/GAU/2011-ORDER DATED 03-02-2012 GAUHATI BENCH OF THE TRIBUNAL ALSO HELD THAT PARTICIPATION IN THE PROCEEDINGS AMOUNTS TO ACQUIESCENCE AND THEREBY THE ASSESSEE IS ESTOPPED F ROM CONTENDING THE ISSUE FURTHER. ABOVE ANALYSIS WOULD SHOW THAT NTPC JUDGMENT OF THE SUPREME COURT IS BASICALLY BASED ON THE PRINCIPLE OF EQUITY WHICH OBVIOUSLY DEMANDED REFUND TO PATENTLY WRONGLY EXTRACTED OR PAID TAX ON AN INCOME WHICH WAS NEVER AMENABLE TO TAX. STRETCHING THIS JUDGMENT TO COVER EVEN THOSE CASES WHERE THE ISSUE IS SUCH WHICH IS NOT CONNECTED WITH THE ASSESSMENT OF SOME ITEM OF INCOME WRONGLY INCLUDED IN THE TAXABLE INCOME WILL AMOUNT TO DOING VIOLENCE WITH THE RATIO OF THAT JUD GMENT. IN THIS CASE APPELLANT HAS SUPPRESSED CASH SALES AT RETAIL COUNT ERS AND ACCEPTED IN QUESTION/ANS 15 OF STATEMENT DT 23-12-2005 THAT CAS H PURCHASES ARE MADE FROM SMALL MALI WHO DO NOT ISSUE BILLS. SPECIF IC DOCUMENTS AT QUESTION NO 19-23 WRT SPECIFIC SEIZED DOCUMENTS, TH E REPLIES WERE EVASIVE AND IN RESPONSE TO QUERY REGARDING OFFERING ANY INCOME OUTSIDE THE BOOKS OF ACCOUNT AND THE FACT THAT NO STOCK REG ISTER OF FLOWERS WAS MAINTAINED THE APPELLANT AGREED TO A SURRENDER OF 2 .5 CRORES IN THE THREE ENTITIES. THE APPELLANT HAS FAILED TO PRODUCE BOOKS OF ACCOUNT BEFORE THE AO OR ANY BILLS AND VOUCHERS DESPITE SPECIFIC OPPOR TUNITY- REFER PAGE 1 OF ASSESSMENT ORDER IN MOST AYS UNDER REFERENCE. FO R DETAILS OF CONSUMABLE STORES- IMPREST ACCOUNTS WERE FURNISHED. FOR HIRE PLANT CHARGES, 133(6) NOTICES CAME BACK UNSERVED WITH REM ARKS OF POSTAL AUTHORITY THAT, NO SUCH PERSON AT THIS NUMBER. NO DETAILS WERE PROVIDED REGARDING SUNDRY CREDITORS EITHER DESPITE SPECIFIC OPPORTUNITY. BEFORE CIT(A) HOWEVER ADDITIONAL EVIDENCE WAS FILED IN THE FORM OF VOUCHERS, BILLS, LEDGER ACCOUNTS ETC. NOTWITHSTANDING WHAT HAS BEEN MENTIONED ABOVE, ONE WOULD NOTICE THAT THE SUPREME COURT JUDGMENTS IN NTPC CASE OR JUTE CO RPORATION CASE ARE BASICALLY THE RESULT OF THE FAILURE ON THE PART OF THE LITIGANTS TO MAKE THEIR LORDSHIPS AWARE ABOUT ALL THE RELEVANT PROVISIONS O F THE INCOME TAX ACT WHICH BECOMES CLEAR FROM THE FOLLOWING OBSERVATIONS MADE BY THE COURT; 'IN THE ABSENCE OF ANY STATUTORY PROVISION, THE APP ELLATE AUTHORITY IS VESTED WITH ALL THE PLENARY POWERS WHICH THE SUBORD INATE AUTHORITY MAY HAVE IN THE MATTER.' THEIR LORDSHIPS WERE NOT MADE AWARE THAT IN THE INC OME TAX ACT THERE ARE TIME LIMITATIONS PRESCRIBED WITHIN WHICH ONLY A N ACTION CAN BE TAKEN BY THE ASSESSEE BEFORE THE AO--E.G. REVISING THE CL AIMS BY FILING REVISED RETURN ETC. LIKEWISE, THE AO CANNOT ASSESS OR RE-AS SESS SOME ITEM OF INCOME AFTER THE LAPSE OF PRESCRIBED TIME. THESE LI MITATIONS ARE ALSO BASED TO A GREAT EXTENT ON THE GOLDEN PRINCIPLE OF STABILITY AND CONSISTENCY. ANY INTERPRETATION TO CIRCUMVENT THESE LIMITATIONS- -MAY ITA NOS.201 TO 203, 428 & 810/DEL./2010 ITA NOS.481 TO 483, 836 & 456/DEL./2010 12 BE BY ADVANCING A CASE IN AN APPEAL BEFORE THE TRIB UNAL--WOULD TANTAMOUNT TO OPENING UP THE CONCLUDED ISSUES AND D ESTABILIZE THE ISSUES SETTLED BY LAPSE OF TIME ESPECIALLY WHERE IR REPARABLE PREJUDICE WOULD GET CAUSED TO REVENUE'S INTEREST BECAUSE BY T HE TIME STALE CLAIMS GET ADJUDICATED LIMITATIONS FOR ALL POSSIBLE ACTIONS UNDER THE INCOME TAX ACT WOULD HAVE BEEN OVER. HAD THEIR LORDSHIPS BEEN MADE AWARE OF THESE LIMITATION PROVISIONS THEIR JUDGMENT S WOULD HAVE BEEN SOMEWHAT DIFFERENT AND QUALIFIED WHEREBY STALE OR T IME BARRED CLAIMS WOULD NOT HAVE BEEN ALLOWED TO BE RAKED UP. IN VIEW OF THE ABOVE REVENUE CONTENDS THAT THERE IS NO VESTED RIGHT WITH THE APPELLANT TO RAKE UP ANY FACTUAL OR LEGAL GROUND AFTER A PARTICULAR STAGE IN A CASE IS OVER OR THE TIME AS M ENTIONED IN THE LAW IS OVER EVEN TAKING SHELTER OF IMPENDING APPEAL PRO CEEDINGS . EVEN WITH THE AID OF SUPREME COURT JUDGMENT IN NTPC CASE IT IS ONLY ON SATISFACTION OF CERTAIN CONDITIONS THAT AN ADDITION AL GROUND CAN BE TAKEN UP FOR THE FIRST TIME BEFORE THE TRIBUNAL . CLAIMS WHICH HAVE BEEN ALLOWED TO BECOME DORMANT CANNOT SUDDENLY BE ALLOWED TO BE RAKED UP SO AS TO UNSETTLE THE OTHERWISE SETTLED POSITION. 5. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE. WE H AVE ALSO CONSIDERED THE CASE LAWS RELIED UPON BY BOTH THE SIDES. HONB LE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LIMITED VS. CIT, CITED SUPRA, HAS HELD AS UNDER :- UNDER SECTION 254 OF THE INCOME-TAX ACT, 1961, TH E APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREON AS IT THIN KS FIT. THE POWER OF THE TRIBUNAL IN DEALING WITH APPEALS IS THUS EXPRES SED IN THE WIDEST POSSIBLE TERMS. THE PURPOSE OF THE ASSESSMENT PROCE EDINGS BEFORE THE TAXING AUTHORITIES IS TO ASSESS CORRECTLY THE TAX L IABILITY OF AN ASSESSEE IN ACCORDANCE WITH LAW. IF, FOR EXAMPLE, AS A RESULT O F A JUDICIAL DECISION GIVEN WHILE THE APPEAL IS PENDING BEFORE THE TRIBUN AL, IT IS FOUND THAT A NON-TAXABLE ITEM IS TAXED OR A PERMISSIBLE DEDUCTIO N IS DENIED, THERE IS NO REASON WHY THE ASSESSEE SHOULD BE PREVENTED FROM RAISING THAT QUESTION BEFORE THE TRIBUNAL FOR THE FIRST TIME, SO LONG AS THE RELEVANT FACTS ARE ON RECORD IN RESPECT OF THE ITEM. THERE I S NO REASON TO RESTRICT THE POWER OF THE TRIBUNAL UNDER SECTION 254 ONLY TO DECIDE THE GROUNDS WHICH ARISE FROM THE ORDER OF THE COMMISSIONER OF I NCOME-TAX (APPEALS). BOTH THE ASSESSEE AS WELL AS THE DEPARTM ENT HAVE A RIGHT TO FILE AN APPEAL/CROSS-OBJECTIONS BEFORE THE TRIBUNAL . THE TRIBUNAL SHOULD NOT BE PREVENTED FROM CONSIDERING QUESTIONS OF LAW ARISING IN ASSESSMENT PROCEEDINGS, ALTHOUGH NOT RAISED EARLIER . THE VIEW THAT THE TRIBUNAL IS CONFINED ONLY TO ISSUES ARISING OUT OF THE APPEAL BEFORE THE ITA NOS.201 TO 203, 428 & 810/DEL./2010 ITA NOS.481 TO 483, 836 & 456/DEL./2010 13 COMMISSIONER (APPEALS) IS TOO NARROW A VIEW TO TAKE OF THE POWERS OF THE TRIBUNAL. UNDOUBTEDLY, THE. TRIBUNAL HAS THE DISCRETION TO AL LOW OR NOT TO ALLOW A NEW GROUND TO BE RAISED. BUT WHERE THE TRIB UNAL IS ONLY REQUIRED TO CONSIDER THE QUESTION OF LAW ARISING FR OM FACTS WHICH ARE ON RECORD IN THE ASSESSMENT PROCEEDINGS, THERE IS NO R EASON WHY SUCH A QUESTION SHOULD NOT BE ALLOWED TO BE RAISED WHEN IT IS NECESSARY TO CONSIDER THAT QUESTION IN ORDER TO CORRECTLY ASSESS THE TAX LIABILITY OF AN ASSESSEE. DURING THE ASSESSMENT YEAR 1978-79, THE ASSESSEE HA D DEPOSITED ITS FUNDS WHICH WERE NOT IMMEDIATELY REQUIRED ON SH ORT-TERM DEPOSITS WITH BANKS. INTEREST RECEIVED ON SUCH DEPOSITS DURI NG THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 1978-79 AMOUNTED TO RS.22,84,994. THIS WAS OFFERED BY THE ASSESSEE FOR ASSESSMENT AND THE ASSESSMENT WAS COMPLETED ON THAT BASIS. BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS), A NUMBER OF GROUNDS WERE TAKEN BY THE AS SESSEE CHALLENGING THE ASSESSMENT. HOWEVER, THE INCLUSION OF THIS AMOU NT OF RS. 22,84,994 WAS NEITHER CHALLENGED BY THE ASSESSEE NOR CONSIDER ED BY THE COMMISSIONER OF INCOME-TAX (APPEALS). FROM THE ORDE R OF THE COMMISSIONER OF INCOME-TAX (APPEALS), THE ASSESSEE FILED AN APPEAL BEFORE THE TRIBUNAL. THE INCLUSION OF THE SAID AMOU NT OF RS.22,84,994 WAS NOT OBJECTED TO EVEN IN THE GROUNDS OF APPEAL A S ORIGINALLY FILED BEFORE THE TRIBUNAL. HOWEVER, BY A FORWARDING LETTE R DATED JULY 16, 1983, THE FOLLOWING ADDITIONAL GROUNDS WERE SOUGHT TO BE RAISED BY THE ASSESSEE: (1) THAT THE SUM OF RS. 22,84,994 DEDUCTE D FROM 'STATEMENT OF EXPENDITURE DURING CONSTRUCTION' COULD NOT BE INCLU DED IN THE TOTAL INCOME; (2) THAT ON ADMISSION (ERRONEOUS), NO INCOM E (THE SUM OF RS. 22,84,994) COULD BE INCLUDED IN THE TOTAL INCOME; A ND (3) THAT THE AUTHORITIES BELOW HAD ERRED AND FAILED IN THEIR DUT Y IN NOT ADJUDICATING THE FACTS AND EVIDENCE ON RECORD AND MECHANICALLY I NCLUDED RS. 22,84,994 IN THE TOTAL INCOME. THE ASSESSEE CONTEND ED THAT IT LEARNT THAT THE INTEREST EARNED BEFORE THE SETTING UP OF BUSINE SS WAS NOT TAXABLE AS INCOME AND IT WENT TO REDUCE THE CAPITAL COST OF TH E PLANT AND HENCE INCLUDED THE ABOVE THREE GROUNDS IN ITS GROUNDS OF APPEAL. HOWEVER, THE TRIBUNAL DECLINED TO ENTERTAIN THE THREE ADDITIONAL GROUNDS. THE TRIBUNAL DIRECTLY REFERRED TO THE SUPREME COURT THE QUESTION WHETHER WHERE, ON THE FACTS FOUND BY THE INCOME-TAX AUTHORI TIES, A QUESTION OF LAW AROSE (ALTHOUGH NOT RAISED BEFORE THE AUTHORITI ES) WHICH BORE ON THE TAX LIABILITY OF THE ASSESSEE THE TRIBUNAL HAD JURI SDICTION TO EXAMINE THE SAME: HELD, THAT THE TRIBUNAL HAD JURISDICTION TO EXAMINE A QUESTION OF LAW WHICH AROSE FROM THE FACTS AS FOUND BY THE INCO ME-TAX AUTHORITIES AND HAVING A BEARING ON THE TAX LIABILITY OF THE AS SESSEE. ITA NOS.201 TO 203, 428 & 810/DEL./2010 ITA NOS.481 TO 483, 836 & 456/DEL./2010 14 THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS REG ARDING FRAMING THE ASSESSMENTS IN ABSENCE OF ANY INCRIMINATING MATERIA L FOUND DURING THE SEARCH. THIS ISSUE WAS NOT RAISED BEFORE THE CIT ( A) AND THERE IS NO FINDING OF THE CIT (A) IN THIS REGARD. AFTER CONSI DERING ALL THE RELEVANT ASPECTS, WE FIND THAT THERE ARE VARIOUS CONTRARY DE CISIONS ON THIS ISSUE IN VARIOUS HONBLE HIGH COURTS AND ITAT BENCHES. WE A LSO FIND THAT THIS ISSUE GOES TO THE ROOT OF THE ISSUE. IN VIEW OF TH ESE FACTS AND IN THE INTEREST OF JUSTICE AND EQUITY, WE FIND IT APPROPRIATE TO AD MIT THE ADDITIONAL GROUND AND REMIT THE ISSUE TO THE FILE OF THE CIT (A) FOR ADJUDICATION. WE ORDER ACCORDINGLY. 5.1 SINCE THE ADDITIONAL GROUND RAISED BY THE ASSES SEE HAS BEEN ADMITTED BY US AND RESTORED TO THE FILE OF THE CIT (A), WHIC H GOES TO THE ROOT OF THE MATTER, THEREFORE, WE ALSO SET ASIDE ALL THE ISSUES RAISED IN ALL THESE APPEALS TO THE FILE OF THE CIT (A) TO BE DECIDED DE NOVO AF RESH AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSE SSEE AND REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 20 TH DAY OF MARCH, 2015. SD/- SD/- (GEORGE GEORGE K) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 20 TH DAY OF MARCH, 2015 TS ITA NOS.201 TO 203, 428 & 810/DEL./2010 ITA NOS.481 TO 483, 836 & 456/DEL./2010 15 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-II, NEW DELHI 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.
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