Decided on October 08,2008



A.D. Jain, J.M. - (1.) THIS is assessee's appeal for the asst. yr. 2001-02 directed against the order dt. 30th Nov., 2007 passed by the learned CIT(A), Jalandhar. The assessee has raised the following grounds of appeal: 1. That the learned CIT(A) has grossly erred in upholding the validity of the impugned assessment initiated by assuming jurisdiction under Section 148, when the normal assessment proceedings were still pending.
(2.) That the learned CIT(A), while holding so, was not justified in inferring that the waiver by the appellant would operate as a bar against the assessee in disputing the jurisdictional defect in the assessment order. That the learned CIT(A) was not justified in not applying the fair market value of Rs. 3,670 as reported by the DVO upon a reference made by the AO under Section 55A r/w Section 16A of the WT Act, 1957, which was binding on the AO.
(3.) THAT the learned CIT(A) has misdirected himself in law in disallowing the claim of exemption under Section 54B by wrongly interpreting the definition of parent as given in the relevant section. 2. Apropos ground Nos. 1 and 2, the assessee contends that the learned CIT(A) erred in upholding the validity of assessment initiated by assuming jurisdiction under Section 148 of the IT Act, when the normal assessment proceedings were still pending. The facts are that the original assessment was completed on 26th March, 2004. This was cancelled vide order dt. 8th Sept., 2004 under Section 263, by the learned CIT. Notice under Section 142(1) of the FT Act was served on the assessee on 11th Feb., 2002. Return in response thereto was filed on 31st March, 2004. It was processed on 12th July, 2002. Notice under Section 148 was also issued on the same date. The contention of the assessee is that while normal assessment in terms of Section 143(2) of the Act was pending, the AO erred in initiating the reassessment proceedings on 12th July, 2002. 3. The learned CIT(A) has rejected this contention of the assessee by observing as follows: The additional ground of appeal so taken being legal ground for which no investigation on facts was required is admitted. But as seen from the facts of the case there was original assessment under Section 143(3) which was cancelled vide order under Section 263 and it again led to completion of assessment under Section 143(3) of IT Act. The order under Section 263 is passed after giving opportunity to the assessee. Therein no such arguments were taken and the order of the CIT, Jalandhar-I has become final as appeal of the appellant against the same was dismissed in limine by the Hon'ble jurisdictional Tribunal vide order bearing ITA No. 633/Asr/2004, dt. 25th Sept., 2004. It was not the ground before the first appellate authority even though the appeal was dismissed as infructuous by the appellate authority. The said position continued in fresh assessment proceedings wherein the issue was again contested on merits. Thus, these facts go to reveal that right to legal remedy, if any, was waived by appellant. Therefore, additional ground taken by the appellant in view of these facts is rejected. 4. We are not impressed by the submissions of the assessee challenging the reassessment proceedings. Admittedly, the order under Section 148 of the Act was passed on 26th March, 2004. No argument against the initiation of the reassessment proceedings was raised at that relevant time, i.e., in the proceedings before the AO. The order passed by the AO was subject to proceedings under Section 263. No argument forth came from the assessee before the learned CIT in the proceedings under Section 263 also. In the proceedings under Section 263, the order passed by the AO was set aside as erroneous as well as prejudicial to the interests of the Revenue. In consequence of the order passed under Section 263, the AO passed the order dt. 28th Dec, 2005, which is the order before us. Now, the course available to the assessee was to challenge the reassessment proceedings at the relevant time under appropriate legal proceedings, as available to him, as per legal advice. This, however, was never done. What ought to have been done directly but has not so been done, cannot be allowed to be done indirectly. The present ground taken by the assessee in the instant appeal is not at all available to him. Therefore, this grievance, i.e., ground Nos. 1 and 2 are rejected.;

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