IN HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.649 of 2010=========================================================== Assistant Commissioner of Income Tax Central Circle-4, Patna ........Appellant/s Versus M/S Kiran Prakashan, Naya Tola, Patna .... .... Respondent/s =========================================================== Appearance : For Appellant/s : Mr. RISHI RAJ SINHA, Sr. S.C. IT For Respondent/s : Mr. Ajay Kumar Rastogi, Advocate =========================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA and HONOURABLE JUSTICE SMT. ANJANA MISHRA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA) Date: 17-04-2015 Heard learned counsel for appellant and learned counsel for respondent. appeal has been filed against order dated 31.3.2010 passed by Income Tax Appellate Tribunal, Patna Bench, Patna in I.T.(S.S.) No. 118/Pat./2005 for block period 1991-92 to 7.6.2000. relevant facts of case are that aggrieved by order of Assessing Officer for block period 1991-92 to 7.6.2000 assessee and Revenue filed their respective appeals before Tribunal which was disposed of by common impugned order dated 31.3.2010. assessee for first time raised issue before Tribunal that no notice under Section 143(2) of Income Tax Act was issued before completing block assessment in terms of decision of Supreme Court in case of Assistant Commissioner, Income Tax & another Vs. Hotel Blue Moon & Ors: 321 ITR 362. Tribunal however, was of view that there has been no finding of fact or evidence on record regarding non-service of notice or otherwise under Patna High Court MA No.649 of 2010 dt.17-04-2015 2/3 Section 143(2) of Act within period of limitation and thus remanded matter back to CIT (Appeal) for adjudication of same in view of aforesaid decision. It was further held that issue goes to root of cause. other ground of assessee was also restored back to file of CIT (Appeal) with directions that in case assessee s objection with regard to service of notice under section 143(2) is found to be incorrect, decision of CIT(A) with respect to issues involved in other grounds will stand and assessee will be free to come before Tribunal, if so advised, for adjudication of case. For same reason issues involved in Revenue appeal were also sent back to file of CIT (Appeal) with direction that in case assessee s objection with regard to service of notice under Section 143(2) is found to be incorrect, decision of CIT (A) with respect to issues involved in other grounds will stand and revenue will be free to come before Tribunal, if so advised, for adjudication of case. Learned Standing Counsel for Income Tax Department has sought to assail aforesaid order of Tribunal on ground that no such issue had been raised before CIT (Appeal), therefore, issues ought not to have been permitted to be raised before Tribunal for first time. In our view, decision of Tribunal to remand matter on limited issue of giving findings of fact appears to be unassailable considering that pure question of law recently settled by Supreme Court has been raised by assessee before Tribunal but there being no finding of fact on question of valid service of notice under Section 143(2) within period of limitation provided under Act, said pure question of law could not have been decided in absence of first there being finding of fact regarding service or non-service of notice under Section 143(2) of Act. Patna High Court MA No.649 of 2010 dt.17-04-2015 3/3 We thus do not find any ground to interfere with order of Tribunal. appeal is, accordingly, dismissed. (Ramesh Kumar Datta, J) S.Pandey/- (Anjana Mishra, J) U Assistant Commissioner of Income-tax Central Circle-4, Patna v. M/S Kiran Prakashan