Commissioner of Income Tax vs Sh. Baldev Raj Mehra

Adarsh Kumar Goel, J.—This appeal has been preferred by the revenue u/s 260A of the Income Tax Act, 1961 (for short, "the Act") against the order of the Income Tax Appellate Tribunal, Amritsar dated 16.11.2007 in I.T.(SS)A. No. 14(ASR)/2003 (Block period from 1.4.1989 to 22.7.1999) raising following substantial questions of law:

(i) Whether the Hon''ble Tribunal has erred in concluding that since the photocopy of the letter had been made available to the counsel for the Assessee and not to the Assessee, the same also did not amount to grant of reasonable opportunity?

(ii) Whether the Hon''ble ITAT even while concluding so has lost sight of the fact that the counsel was duly representing the Assessee in the proceedings and had also replied to the said letter on the behalf of the Assessee, thus the Assessee had exercised his right of hearing before enhancement of income assessed?

(iii) Whether there was any violation of the principle of the natural justice or there was procedural error as provided for u/s 251(2) of the I.T. Act?

(iv) Whether, even while holding that proper opportunity before enhancement was not given, the Ld. ITAT was justified in quashing the enhanced addition to assessed income instead of restoring the matter to the file of CIT(A) to grant a proper opportunity before enhancement?

Return of the Assessee for the block period in question was processed u/s 143(1)(a) of the Act but later, assessment was made u/s 143(3) of the Act which was upheld by the CIT(A) and further addition was made. The addition by the CIT(A) was set aside by the Tribunal on the ground that procedure u/s 251(2) was not followed before making further addition. The Tribunal dismissed the cross appeal of the Assessee challenging the assessment itself on the ground that notice u/s 143(2) of the Act had not been served within the stipulated period before the block assessment. Against the order of the Tribunal, the Assessee preferred I.T.A. No. 372 of 2009 before this Court which was allowed vide judgment dated 7.4.2010 following the judgment of the Hon''ble Supreme Court in Assistant Commissioner of Income Tax and Another Vs. Hotel Blue Moon, . It was held that since statutory notice u/s 143(2) had not been issued within the stipulated time, assessment itself was liable to be set aside.

In view of the fact that assessment itself has been held to be illegal, appeal of the revenue challenging setting aside of further addition by the CIT(A) has been rendered infructuous and is accordingly dismissed.