Export Credit Guarantee Corp vs. ITO (ITAT Bombay)

DATE: (Date of pronouncement)
DATE: January 28, 2009 (Date of publication)

The assessee is entitled to take advantage of reassessment proceedings to re-raise issues that have not attained finality

Where the AO reopened the assessment to rework the book profits u/s 115JA and in an appeal against such order the assessee raised other issues unconnected with the reassessment and the preliminary point arose as to whether in the light of the judgement of the Supreme Court in CIT vs. Sun Engineering 198 ITR 297, the assessee was entitled to raise such issues, HELD that:

(i) The judgement in Sun Engineering had to be confined to a case where the issue had attained finality in the original proceedings. Such an issue could not be permitted to be agitated by the assessee in reassessment proceedings. However, as the facts showed that the issue had not attained finality in the original proceedings, there was no bar in the assessee raising such issues in the reassessment proceedings.

(ii) In an appeal by the assessee, the respondent-department, having not filed any appeal or cross-objection against the order of the CIT (A), is not permitted to raise a ground which will work adversely to the assessee.

Noted: NTPC Ltd vs. CIT 229 ITR 383 (SC) distinguished.

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