JUDGEMENT
F.C. Rustagi, Judicial Member -
(1.)THIS is one of those attempts of the learned counsel for the assessee to bring back his point after he lost in appeal before the Tribunal on 3-6-1987, then lost in misc. petition No. 212/Del/87 on 1-1-1988 and even after draft statement of the case was made on 27-7-1988 and statement of the case was finalised subsequently on 28-9-1988. In the present mist, petition the learned counsel for the assessee has mentioned a large number of facts, most of which do not arise either from the order of the Income-tax Officer originally made Under Section 144, subsequently reopened Under Section 146 and again made after it was reopened from the order of the AAC or the Tribunal. The attempt in this misc. application is really to bring back the dead to life. When it was pointed out to him in course of hearing as to wherefrom all these facts emanate, his only submission was that facts are what they ate stated in the misc. petition. Though it was too late in the day that this misc. application sought to be heard, as it was filed on 13-6-1989 and statement of case was finalised on 28-9-1989, this was permitted in the name of natural justice.
(2.)The assessee lady who is legal heir of deceased assessee Dewan Hukam Chand, came in appeal before the Tribunal for assessment year 1966-67. Her major contention was that notice issued Under Section 148 of the Income-tax Act, 1961, was illegal, void and without jurisdiction. The other issue raised was regarding charging of interest Under Sections 139(8) and 217, which was also attempted to be connected with the main issue in the sense that according to the assessee's counsel notice Under Section 148 was not heard at all, therefore, no interest was chargeable. The Tribunal while hearing this appeal observed that major contention of the assessee regarding invalidity of action under Section 148 could be raised on the facts and in the circumstances of the case, because the undistributed fact of the case as observed by the Tribunal, were that assessment Under Section 144 was completed on 22-3-1980. Subsequently as a consequence of 146 proceedings, the said assessment was reopened and it was the subsequent assessment framed thereafter, which came before the Tribunal, the Tribunal observed that Section 146(1) provides that ITO shall, if satisfied about the existence of grounds given in that section, cancel the assessment and proceed to make fresh assessment in accordance with the provisions of Section 143 or Section 144 of the Act. The Tribunal observed that the said provisions being mandatory were brought into operation at the instance of the assessee, who filed application Under Section 146. The Tribunal very clearly observed that the question of invalidity of action Under Section 148 could not be raised as the assessee had right to pursue the question of illegality of the assessment by filing an appeal against the order Under Section 144 dated 22nd March, 1980. At that stage even the learned counsel for the assessee admitted that though an appeal was filed before the AAC against the original assessment framed Under Section 144, but a dispute regarding illegality was not raised. The Tribunal very correctly observed that assessee missed the bus. It was out of the said Tribunal's order that the statement of the case was drafted and finalised. All those matters which are projected by the learned counsel for the assessee, as such, are such, which do not arise and which are not found in the order of the Tribunal. As a matter of fact to be honest and frank the learned counsel for the assessee is making an attempt by back door to do what he could not do at proper time and make up its fault by not raising the ground against the original assessment before the AAC. During long discussion the learned counsel for the assessee could neither dispute the facts which are stated in Tribunal's order nor could show the source of facts which are placed by him in the misc. petition. The misc. petition being misconceived, the same as such is rejected.
Because it is not enough that the justice is done but the people should be convinced that the justice is being done, the draft statement finalised was held up for annexures as it was considered just and in fitness of things to dispose of this misc. petition. Since the same is disposed of and rejected, the learned counsel for the assessee is advised to make the annexures available within fifteen days from the receipt of this order, so that the statement of case available on file is sent to the Hon'ble High Court.
(3.)MISC. petition stands rejected.
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