ITAT allowed the assessee to withdraw the appeal

1. The assessee was engaged in the business of manufacturing of electrical panels under the name and style of M/s. Electro Control and Device. The original assessment in this case was completed u/s

143(3), wherein the income of the assessee was assessed at Rs.2,66,430/- as against the return of income of Rs.2,14,099/-. Subsequently, the AO proposed to reopen the assessment on the reasons that the assessee has sold a property of Rs.20 lacs whereas the circle rate of the said property at that time was Rs.26,85,000. In re-assessment order the AO made an addition of Rs.5,48,600/- on account of short term capital gain.

2. The assessee's appeal before CIT(A) was dismissed.

3. On appeal, the ITAT held as under:

4. Having considered the rival submission and carefully perused the record I find that ground No.1 is regarding the validity of reopening has been raised by the assessee first time before this tribunal. The learned Commissioner of Income-tax (Appeals) has reproduced grounds raised by the assessee and the assessee did not raise any such ground or objection or even took such plea challenging the validity of reopening. Though, an additional ground or a fresh plea can be raised before this tribunal on the legal issue which goes to the root of the matter however, such a plea or additional grounds can be raised only by seeking permission for admission of such plea before this Tribunal. The assessee has not raised this ground as an additional ground but has including in the grounds raised along with memorandum of appeal in Form No.36. Even otherwise the assessee has not sought any permission for admission of additional ground(s)/plea on this issue. In the absence of any such application or plea for admission of the additional grounds the ground No.1 raised by the assessee cannot be taken up for adjudication as the same does not emanates from the impugned order of the learned Commissioner of Income-tax (Appeals). Accordingly when this grounds was not adjudicated by the learned Commissioner of Income-tax (Appeals) and the assessee has not explained any reason for not raising this ground before learned Commissioner of Income-tax (Appeals) then this ground raised by the assessee becomes non-est and accordingly dismissed.

5. In the result appeal of the assessee is dismissed.”

Case Reference-BEFORE SHRI SAKTIJIT DEY, JM AND SHRI RAJESH KUMAR, AM ./I.T.A. No. 6909/Mum/2012 ( / Assessment Year: 2008-09) Mr. Sailesh L. Bhatia v Dy. Commissioner of Income Tax

IN THE INCOME TAX APPELLATE TRIBUNAL "E" BENCH, MUMBAI