RAJESH KUMAR Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS appeal preferred under s. 260A of the IT Act, 1961 ('Act' for short) by the assessee challenges the consolidated No. 10/Del/2007 and IT(SS)A No. 17/Del/2007. Vide this order, the learned Tribunal has held that the assessment completed was within the period of limitation and in light of the judgment of the Hon'ble Supreme Court in the case of Sahara India (Firm) vs. CIT (2008) 216 CTR (SC) 303 : (2008) 300 ITR 403 (SC).

(2.) THE contention on behalf of the appellant is that in his own case, that is, Rajesh Kumar and Ors. vs. Dy. CIT (2006) 206 CTR (SC) 175 : (2006) 287 ITR 91 (SC), the apex Court had ruled in his favour, that opportunity of hearing has to be granted to the assessee before proceeding under s. 142(2A). Thus, according to the petitioner, the impugned assessment framed under s. 158BC of IT Act by the AO is barred by limitation within the meaning of the provisions contained in s. 158BE r/w s. 142(2A) of the Act.

(3.) THE learned counsel for the respondent has supported the order of the learned Tribunal placing reliance on the judgment of Sahara India (Firm) (supra). The Hon'ble apex Court in that case upheld the judgment in Rajesh Kumar (supra) but held that although the orders in question were vitiated by failure to observe the principle of audi alteram partem, its ruling on question of law would apply proportionately and that it would not be open for the appellant to raise the question of limitation before the appellate authority. The relevant excerpts of the judgment of Sahara India (Firm) (supra) are as under :