The Income Tax Officer, Dcit, Circle v. Shankar Lall Goenka

IN THE GAUHATI HIGH COURT(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) INCOME TAX APPEAL NO.12 OF 2022 1. The Commissioner of Income Tax, Office of the Principal Commissioner of Income Tax, Guwahati, Aayakar Bhawan, Seventh Floor, G.S. Road, Guwahati – 781005. 2. The Income Tax Officer, DCIT, Circle-4, Guwahati, Office of the Principal Commissioner of Income Tax, Guwahati, Aayakar Bhawan, Seventh Floor, G.S. Road, Guwahati – 781005. -Versus- …..Appellants Shankar Lall Goenka, Resident of Kelvin Cinema Compound, S.R.C.B. Road, Fancy Bazar, Guwahati, Assam – 781001. …..Respondent – BEFORE – HON’BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR For the Appellant(s) For the Respondent(s) Date of Hearing Date of judgment : Mr. S.C. Keyal, Advocate. : None. : 24.04.2025. : 25.04.2025. (Vijay Bishnoi, CJ) JUDGMENT &ORDER (CAV) Heard Mr. S.C. Keyal, learned counsel for the appellant. Though the notice of the appeal wasduly served upon the solerespondent butnone hasappearedon behalf of the sole respondent. 2.This income tax appealisfiled by theappellantsunder Section 260A ofthe Income Tax Act, 1961 (hereinafter to be referred as the “I.T. Act”)against the orderdated28.10.2021passed by the Income Tax Appellate Tribunal,Gauhati Bench, Guwahati(hereinafter to be referred as “ITAT”), wherebythe appealpreferred by therespondent/assesseeunder Section 250 read with Section 251 of the I.T. Act, has been allowed. 3. This Court, while admitting the present appealvide orderdated17.02.2025, has framed the following substantial questions of law:- “(a) Whether the Learned Tribunal was justified in not considering the fact that both officers i.e. ITO, Ward -4(3), Guwahati and DCIT, Circle-4, Guwahati within the same Range & at the same station are having concurrent jurisdiction over the assessee? (b) Whetherthe Learned Tribunal isjustifiedin admitting the new grounds without putting on record reason of assessee of not raising the issue earlier? (c) Whether the Learned Tribunal is justifiedinnot taking note that the intent of Instruction No. 1/2011 is to reduce hardship to the taxpayers in respect of transfer to AC/DC at different station and that the issuance of notice u/s 143(2) and assessment u/s 143(3) of Income Tax by assessing officer at same station of same Range with same supervisory joint commissioner is completefulfillmentof all conditionsand assessmentprocedure as whole?” 4. Having carefully scrutinizingthe materialavailable on record,we are of the view thatnone of the above substantial questionsof law arisein this appeal.However,another substantial question of law,which has not been formulated earlier,arisesin this appeal.Needless to say that as pertheproviso tosub-section (4) of Section 260A of the I.T. Act, the High Court canframeasubstantialquestionof law afresh,whilesatisfying itself thatthe case involved suchquestion of law.[See –Commissioner of Income Tax -Vs- Engineers India Limited, reported in (2014) 16 SCC 420and also see–Umerkhan -Vs- Bismillabi @ Babulal Shaikh & Ors., reported in(2011) 9 SCC 684] 5. In view of the fact that the assessee had raised anadditional ground before theITAT, which was not raised either before theAssessing Officer or the Commissioner of Income Tax (Appeals) [hereinafter to be referred as “CIT (Appeals)”] during the adjudication of theappeal preferred by the assessee,questioning the authority of the Assessing Officer, i.e. the Income Tax Officer, of issuing notice to the assessee under Section143(2)of the I.T. Act and the Deputy Commissioner Income Tax (hereinafter to be referred as “DCIT”) of passing the assessment order under Section 143(2) of the I.T. Act, in our considered opinion,the following substantial question of law is involved in this appeal – 5. In view of the fact that the assessee had raised anadditional ground before theITAT, which was not raised either before theAssessing Officer or the Commissioner of Income Tax (Appeals) [hereinafter to be referred as “CIT (Appeals)”] during the adjudication of theappeal preferred by the assessee,questioning the authority of the Assessing Officer, i.e. the Income Tax Officer, of issuing notice to the assessee under Section143(2)of the I.T. Act and the Deputy Commissioner Income Tax (hereinafter to be referred as “DCIT”) of passing the assessment order under Section 143(2) of the I.T. Act, in our considered opinion,the following substantial question of law is involved in this appeal – “Whether the assessee canchallengethe authority ofthe ITO,who had issuedthe notice underSection 143(2) of the I.T. Act and the authority ofthe DCIT for issuing the assessment order under Section 143(3) of the I.T. Act,in view of the limitations prescribed under Sections 292B and292BB ofthe I.T. Act?” 6. The brief facts of the case are that therespondent/ assesseehade-filed his returnofincome in ITRfor the assessment year2015-16 on30.09.2015 showing total income of Rs.20,03,070/-(Rupees Twenty Lakhs Three ThousandSeventy).The case of the assessee was selected for limited scrutiny under theCASSand the Income Tax Officer issued a notice under Section 143(2) of the I.T. Act on 20.09.2016 to the assessee.Later on, the Income Tax Officer had transferredthe case to theDCITandinturn,theDCIT has issueda notice under Section142(1) of the I.T. Act tothe assessee andhaspassed the assessmentorder underSection 143(3) of the I.T. Act on27.12.2017and added unsecured loanaggregatingtoRs.4,30,00,000/- (Rupees Four Crores 30 Lakhs) in the income and computedthetotal income ofthe assesseeasRs.4,52,10,840/-(Rupees Four CroresFifty Two Lakhs TenThousand Eight HundredForty). 7. Aggrieved by the assessment order dated 27.12.2017,the assessee preferredan appeal beforethe CIT (Appeals),which came to be dismissed on 30.07.2019,whereby the CIT (Appeals)upheldtheorderoftheAssessing Officerandhas alsodirected theAssessing Officerto take necessary andrequisiteactionagainst the assesseeas per other laws,i.e.theprovisionscontainedintheProhibitionofBenamiPropertyTransactionAct, 1988(as amended till 2016)andthePreventionofMoneyLaunderingAct,2002after following due procedureaspertheInstructionsandRules. 8. Being aggrieved with the order passed by the CIT (Appeals),the respondent/assesseepreferredan appealbefore the ITAT underSection 253 ofthe I.T. Act, wherein an additionalground was raised,which was not raised inthe appeal preferredbefore the ITAT. Videthe said additional ground,the assessee had claimedbeforethe ITAT thatthe Income Tax Officer hasno jurisdiction toissuenoticeunder Section143(2) of the I.T. Act to the assessee becauseithas no authority toassessthe income ofan assessee,whose return ismore than Rs.20,00,000/- (Rupees Twenty Lakhs) in the moffusilareaas per the instructionNo.1/2011 dated31.01.2011issued by theCentral Board of Direct Taxes (CBDT).The assessee has also claimed thatthough thecase was transferred to theDCIT bythe Income Tax Officerbut since theDCIThas not issuedany notice underSection 143(2) of the I.T. Act to theassessee,the action of the DCIT of issuing assessment orderwhile exercisingpowers under Section143(3) of the I.T. Act is ex-facie null in law. jurisdiction toissuenoticeunder Section143(2) of the I.T. Act to the assessee becauseithas no authority toassessthe income ofan assessee,whose return ismore than Rs.20,00,000/- (Rupees Twenty Lakhs) in the moffusilareaas per the instructionNo.1/2011 dated31.01.2011issued by theCentral Board of Direct Taxes (CBDT).The assessee has also claimed thatthough thecase was transferred to theDCIT bythe Income Tax Officerbut since theDCIThas not issuedany notice underSection 143(2) of the I.T. Act to theassessee,the action of the DCIT of issuing assessment orderwhile exercisingpowers under Section143(3) of the I.T. Act is ex-facie null in law. 9. The ITAT has entertained the said additional ground raisedby the assessee, while relyingon a decision of the Hon’ble Supreme Court rendered inNational Thermal Power Corporation Limited -Vs- Commissioner of Income Tax, reported in (1997) 7 SCC 489and has allowed theappealpreferred bythe assessee, whileholding thatthe IncomeTax Officer hasnojurisdictionto issue noticeunder Section 143(2) of the I.T.Act to the assesseedue to lackofpecuniary jurisdiction andin the absenceof a notice issuedby the DCITunderSection 143(2) of the I.T. Act,the assessment order passed by itunder Section 143(3) of the I.T. Act is not valid in the eyes oflaw and,therefore, is null and void.It would be apposite to reproduce hereunder theimpugned order passed by the ITAT:- “This is an appeal preferred by the Assessee against the order of Ld. CIT(A)-2, Guwahati dated 30.07.2019 for Assessment year 2015-16. 2. At the outset, the Ld. A.R. of the assessee Shri Somnath Ghosh drew our attention to the additional ground of appeal raised by the assessee which according to him is a legal issue which goes to the root of the jurisdiction of the AO to frame the assessment order. Therefore, the same may be adjudicated first and further contended that since it is a legal issue it can be raised for the first time as per the Hon’ble Supreme Court decision in the case of NTPC Ltd. 229 ITR 383 (SC). 3. The legal issue that has been raised as additional ground reads as under: ‘For that in the facts and circumstances of the instant case, the Ld. Commissioner of Income Tax (Appeals)-2, Guwahati acted unlawfully in not appreciating that none of the conditions precedent existed for and/or were fulfilled by the Ld. Income Tax Officer, Ward-4(3), Guwahati for his specious action of issuing notice u/s 143(2) of the Income Tax Act, 1961 on 20.09.2016 in the instant case and the purported assessment order framed u/s 143(3) of the Income Tax Act, 1961 on 27.12.2017 by the Ld. Deputy Commissioner of Income Tax, Circle-4, Guwahati without adhering to the mandatory tenets is therefore ab initio void, ultra vires and ex-facie null in law.’ 3. The legal issue that has been raised as additional ground reads as under: ‘For that in the facts and circumstances of the instant case, the Ld. Commissioner of Income Tax (Appeals)-2, Guwahati acted unlawfully in not appreciating that none of the conditions precedent existed for and/or were fulfilled by the Ld. Income Tax Officer, Ward-4(3), Guwahati for his specious action of issuing notice u/s 143(2) of the Income Tax Act, 1961 on 20.09.2016 in the instant case and the purported assessment order framed u/s 143(3) of the Income Tax Act, 1961 on 27.12.2017 by the Ld. Deputy Commissioner of Income Tax, Circle-4, Guwahati without adhering to the mandatory tenets is therefore ab initio void, ultra vires and ex-facie null in law.’ 4. Brief facts of the case are that the assessee is an individual who filed his return of income for the year under consideration wherein he declared total income to the tune of Rs.20,03,070/-. On the legal issue raised by the assessee, the Ld. AR for the assessee submitted that as per the CBDT Instruction No.1/11 (F. No.187/ 12/2010-IT(AT) dated 31.01.2011 CBDT has fixed new monetary limit in Mufassil areas, according to which income above Rs.15 lacs for ‘non corporate assessee’ and Rs.20 lacs for ‘corporate returns’ has to be assessed by ACIT/DCIT. Thus, according to Ld. Counsel, since assessee’s principal business is in Moffusil area, the AO should have acted upon the instructions given by the CBDT which is binding on the officers of the Department; and since the assessee has declared more than Rs.20 lacs as his returned income, then the scrutiny assessment could have been done by only the ACIT/DCIT and not by the ITO who does not have the pecuniary jurisdiction to do so. However, in this case in hand, even though the assessee’s return of income is more than Rs.20 Lakh, the ITO, Ward-4(3) erroneously assumed jurisdiction and issued the mandatory scrutiny notice u/s 143(2) of the Income Tax Act, 1961 (hereinafter referred to as the Act) and after realizing the mistake had transferred the case file to the jurisdiction of DCIT, Circle-4 who framed the assessment order u/s 143(3) of the Act, which is bad in law because the DCIT has not issued the notice u/s 143(2) of the Act. For ready reference, Instruction No.1/2011 is reproduced below: “INSTRUCTION NO.1/2011 (F. NO.187/12/2010-IT (A-1), DATED 31-1-2011 References have been received by the Board from a large number of taxpayers, especially from mofussil areas, that the existing monetary limits for assigning cases to ITOs and DCs/ACs is causing hardship to the taxpayers, as it results in transfer of their cases to a DC/AC who is located in a different station, which increases their cost of compliance. The Board had considered the matter and is of the opinion that the existing limits need to be revised to remove the abovementioned hardship. An increase in the monetary limits is also considered desirable in view of the increase in the scale of trade and industry since 2001, when the present income limits were introduced. It has therefore been decided to increase the monetary limits as under: The above instructions are issued in supersession of the earlier instructions and shall be applicable with effect from 01-04.2011.’ The above instructions are issued in supersession of the earlier instructions and shall be applicable with effect from 01-04.2011.’ 5. From a perusal of the above Instruction of the CBDT it is evident that the pecuniary jurisdiction conferred by the CBDT on ITOs is in respect to the ‘non corporate returns’ filed where income declared is only upto Rs.15 lacs; and the ITO doesn’t have the pecuniary jurisdiction to conduct assessment if it is above Rs.15 lakhs. Above Rs.15 lacs income declared by a non-corporate person i.e. like assessee, the pecuniary jurisdiction lies before AC/DC. In this case, admittedly, the assessee an individual (non corporate person) who undisputedly declared income of Rs.20,03,070/- in his return of income cannot be assessed by the ITO as per the CBDT circular (supra). From a perusal of the paper book, it reveals that the statutory notice u/s 143(2) of the Act was issued by the then ITO, Ward-4(3), Guwahati on 20.09.2016 (Refer Page 211 of PB); and the same was served upon the assessee as noted by the AO in the assessment order. Later on the ITO taking note that since the returned income is more than Rs.15 lacs, he transferred the case to DCIT, Circle-4, Guwahati who issued interim notice u/s 142(1) dated 03.03.2017 (Refer Page 209 of PB) and framed the assessment order without issuing notice u/s 143(2) of the Act. From the aforesaid facts the following facts emerged: i) The assessee had filed return of income declaring Rs.20,03,070/-. The ITO issued notice under section 143(2) of the Act on 20.09.2016. ii) The ITO, Ward-4(3), Guwahati taking note that the income returned was above Rs.15 lacs transferred the case to DCIT, Circle-4, Guwahati. iii) On 03.03.2017 notice u/s 142(1) was issued by DCIT, Circle-4, Guwahati but did not issue notice u/s 143(2) of the Act within the prescribed time limit and before passing the assessment order u/s 143(3) of the Act. 6. We note that the CBDT Instruction is dated 31.01.2011; and the assessee has filed the return of income on 30.09.2015 declaring total income of Rs.20,03,070/-. As per the CBDT Instruction the monetary limits in respect to an assessee who is an individual which falls under the category of ‘non corporate returns’ the ITO’s increased monetary limit was upto Rs.15 lacs; and if the returned income is above Rs.15 lacs it was the AC/DC. So, since the returned income by the assessee in the present case is an individual is above Rs.15 lakh, then the pecuniary jurisdiction to assess the assessee lies only by AC/DC and not the ITO. So, therefore, only the AC/DC had the jurisdiction to assess the assessee. It is settled law that serving of notice u/s 143(2) of the Act is a sine qua non for an assessment to be made u/s 143(3) of the Act. In this case, notice u/s 143(2) of the Act was issued on 20.09.2016 by ITO, Ward-4(3), Guwahati when he did not had the pecuniary jurisdiction to assume jurisdiction and issue notice. Admittedly, when the ITO realized that he did not had the pecuniary jurisdiction to issue notice, he duly transferred the file to the DCIT, Circle-4, Guwahati, when the DCIT issued notice u/s 142(1) of the Act and did not issue notice u/s 143(2) of the Act within the time limit prescribed for issuance of notice u/s 143(2) of the Act for the assessment year 2015-16. We note that the DCIT by assuming the jurisdiction after the time prescribed for issuance of notice u/s 143(2) of the Act notice became coarum non judice after the limitation prescribed by the statute was crossed by him. Therefore, in this case, the omission/non-issuance of notice by the DCIT, Circle-4, Guwahati before the limitation period for issuance of statutory notice u/s. 143(2) of the Act has set in, goes to the root of the case because the DCIT gets jurisdiction to frame assessment order u/s 143(3) of the Act only thereafter. Ergo, the assessment order passed by the DCIT, Circle-4 u/s 143(3) of the Act is not valid in the eyes of law and, therefore, is null and void in the eyes of law, and consequently we quash it. Therefore, the legal issue raised by the assessee is allowed. Since we have quashed the assessment and the appeal of assessee is allowed on the legal issue, the other grounds raised by the assessee need not to be adjudicated because it is only academic. Therefore, the additional ground raised by the assessee is allowed. 7. In the result, the appeal of the assessee is allowed.” Having gone through the order passed by the ITAT, itis 10. clear thatit had interferedwiththeorderpassedby the CIT (Appeals)as well as the assessment order passed by theDCITon the ground thatonly the DCIT hasthejurisdictionofissuing noticeunder Section 143(2) of the I.T. Act to the assessee and then only gotthe jurisdiction to passthe assessment order underSection 143(3) of the I.T. Act, whereas in the present case, the notice under Section 143(2)of the I.T. Act was issued by the Income Tax Officer thoughhedid not havethepecuniary jurisdiction and realizing thismistake,hetransferredthe file to the DCIT,who,in turn hasissued a notice under Section 142(1) of the I.T. Actbut did not issuenotice underSection 143(2) of the I.T. Act within the time limit prescribedfor issuanceofthe said notice for the concerned assessment year.It is further observed that the DCIT could not have issuednotice under Section143(2) of the I.T. Act becauseof expiry of the limitationprescribed by the statute.The ITAT has recorded a categorical finding that inthe case inhand,omission ofnotice by the DCIT before thelimitation period for issuance ofstatutory notice underSection 143(2) of the I.T.Act goesto the root of the case and, therefore, the assessment order passed by the DCIT is not valid in the eyes of law and is null and void. The ITAT has allowed theappeal preferredon behalf of theassesseeonly onthe said groundandhas observed thattheothergroundsraised by the assesseeneed not be adjudicated becauseit is only academic. 11. Weare of the view that the ITAT has altogether ignoredthe provisions ofSection 292B as well as the provisionsof Section 292BB of theI.T. Act,which limitstherightofanassesseeofchallenging anoticeissuedunder the provisions ofthe I.T. Act.For ready reference, the provisions of Section 292B and Section292BB of the I.T. Actare reproduced hereunder:- “292B. Return of income, etc., not to be invalid on certain grounds. – No return of income, assessment, notice, summons or other proceedingfurnished ormadeor issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act. 292BB. Notice deemed to be valid in certain circumstances. – Where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time inaccordance withthe provisions of thisAct and suchassessee shallbe precludedfromtaking any objectioninanyproceeding orinquiry under this Act that the notice was – (a)not served upon him; or (b)not served upon him in time; or (c)Served upon him in an improper manner: 292BB. Notice deemed to be valid in certain circumstances. – Where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time inaccordance withthe provisions of thisAct and suchassessee shallbe precludedfromtaking any objectioninanyproceeding orinquiry under this Act that the notice was – (a)not served upon him; or (b)not served upon him in time; or (c)Served upon him in an improper manner: Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment.” 12. Section 292B provides thatnoticeas well asreturn of income, assessment, summons, etc.,issued under the provisions of the I.T. Act cannot be treatedas invalid merely byreason ofany mistake,defect or omission insuch notice,etc., ifthe same is in substanceandeffectin conformitywith oraccording to theintent and purpose of the I.T. Act.The ITAT, in the presentcase,has interferedwith the order passed bythe CIT (Appeals) and the assessment ordermainly on theground that there isomission onthe part of the DCIT in not issuing notice under Section 143(2) of the I.T. Act to the assessee. The ITAThas not concludedthat thenotice issuedtothe assessee by theIncome Tax Officer underSection 143(2) of the I.T. Act is notin substance ornot in conformity withthe intent and purpose of the I.T. Act. Inthe absence of such finding,the ITAT cannot interfere with thenotice orthe assessment orderissued against the assessee. In the present case, apart from that, the assessee is alsodebarred from challenging the assessmentproceedingsforthe first timebefore theITAT onthe groundof issuanceofnotice underSection 143(2) of the I.T. Act by theIncome TaxOfficer inthe light of the provisionsof Section 292BB ofthe I.T. Act.Section292BB of the I.T. Act clearly provides thatwhereanassessee has appeared intheproceedingsrelating toassessment or reassessmentbeforethe authority concernedwithout raising anyobjection before completion ofassessment orreassessment, it is not open for him to raisesuch objection afterpassing of theassessment order.In the present case, the notice underSection 143(2) of the I.T. Act was issued by the Income TaxOfficer and wasduly served upon theassessee, who, in turn,had appearedbefore the DCIT, towhich the proceedingswere transferred bythe Income TaxOfficer, withoutraising any objection tillthe assessment order was passed. Evenin the appeal preferred by theassessee beforethe CIT (Appeals), no such groundwas ever raised by the assessee.In such circumstances, we are of the candid view that asper law,the respondent/assessee wasnot within his right to raise the objection regarding issuance of noticeby the Income Tax Officer underSection 143(2) of the I.T. Act or questioning the authority ofthe DCIT in passing the assessment orderwhile exercising powers under Section 143(3) of the I.T. Act before the ITAT. the Income TaxOfficer and wasduly served upon theassessee, who, in turn,had appearedbefore the DCIT, towhich the proceedingswere transferred bythe Income TaxOfficer, withoutraising any objection tillthe assessment order was passed. Evenin the appeal preferred by theassessee beforethe CIT (Appeals), no such groundwas ever raised by the assessee.In such circumstances, we are of the candid view that asper law,the respondent/assessee wasnot within his right to raise the objection regarding issuance of noticeby the Income Tax Officer underSection 143(2) of the I.T. Act or questioning the authority ofthe DCIT in passing the assessment orderwhile exercising powers under Section 143(3) of the I.T. Act before the ITAT. 13. So far as the judgment of the Hon’ble Supreme Court,on which the ITAT has placed reliance, isconcerned, weare of the view thatthere isnoquarrelabout the proposition laid downby the Hon’ble Supreme Courtbecauseit is settledthat the appellateauthorityhas all thepowerswhichthe original authority may have in deciding the question before it.However, the said authority is subject to restrictions orlimitationsprescribedby thestatutory provisions. The Hon’ble Supreme CourtinNational Thermal Power Corporation Limited (supra)hasrelied upon its earlierdecision as renderedinJute Corporation of India Limited -Vs- Commissioner of Income Tax & Anr.,reported in1991 Supp (2) SCC 744, wherein theHon’ble Supreme Courthasheldthattheappellate authoritywhilehearing an appealagainstthe order of a subordinateauthorityhas all the powers which the original authority may have in decidingthequestionbeforeitbutthe said power issubject to the restrictionsand thelimitations,if any,prescribed bythe statutory provisions.Relevant paragraph of the decision of the Hon’ble Supreme Court renderedinJute Corporation of India Limited(supra) is reproduced hereunder:- “6. The above observations are squarely applicable tothe interpretationof Section 251(1)(a) of the Act. Thedeclaration of law is clearthatthe power of theAppellateAssistantCommissioneris co-terminus withthat ofthe IncomeTax Officer,if that be so,there appears to be no reason asto why the appellateauthoritycannot modify theassessmentorderonan additionalgroundeven if not raisedbeforethe Income Tax Officer.No exception could be taken to this view asthe Actdoesnotplaceanyrestrictionorlimitationonthe exerciseofappellatepower.Even otherwise an Appellate Authority whilehearingappealagainstthe order of asubordinateauthorityhasall the powerswhichthe originalauthoritymayhaveindecidingthequestionbeforeitsubjecttotherestrictionsorlimitationsifanyprescribedbythe statutory provisions.In the absence of any statutory provision theAppellateAuthorityis vested with all theplenarypowerswhichthesubordinateauthoritymayhaveinthe matter.There appears tobenogood reason andnonewasplacedbefore us to justifycurtailmentofthepowerof theAppellate AssistantCommissionerinentertaininganadditionalgroundraisedby theassesseeinseekingmodification oftheorderofassessmentpassedby the IncomeTax Officer.” Emphasis supplied 14. As observed earlier, in the present case, in the light ofthe provisions of Section 292B as well as Section 292BB of the I.T. Act, the right ofthe assessee has been restrictedto challenge thevalidityof a noticeissuedby the Income Tax Officer orthe assessment order passedby the DCIT and insuch circumstances,the ITAT has illegally passedthe impugnedorder ignoringthesaid provisions,which restricts the rightof the assessee. 15. Hence, the question of law framed bythis Court is answered inaffirmative andtheimpugned order passed bythe ITAT isset aside.Consequently, the appeal is allowed.The matter isremandedto theITATfordecidingtheappealpreferredbytheassesseeafreshon othergroundsraisedbytheassesseeintheappeal preferred before it. JUDGE CHIEF JUSTICE Comparing Assistant