1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1407 OF 2008 Shri.Madhav Kunder. ...Petitioner. vs. 1.Union of India & another. ...Respondents. --- Mr.K.R.Dixit with S.A.Bhagwat, for Petitioner. CORAM: D.K.DESHMUKH & J.P.DEVADHAR, JJ. DATED: 16TH July, 2008. P.C.:- 1. By this petition, the petitioner challenges the order passed by the Income Tax Tribunal rejecting the application filed by the petitioner for rectification of the order of the Tribunal. Rectification of the order was sought because the plea in relation to the limitation had not been 2 properly considered by the Tribunal. The learned Counsel appearing for petitioner submitted that it was his case that because the second panchanama of January,1998 was invalid, that should not be taken into consideration for the purpose of determining the period of limitation. According to the learned Counsel, this plea has not been considered by the Tribunal. Therefore, we asked the learned Counsel appearing for petitioner to point out whether this plea that the second panchanama was not in accordance with law and was invalid, and therefore, it cannot be taken into consideration for the purpose of limitation, has been raised in the memorandum of appeal filed before the Tribunal. The learned Counsel fairly conceded that the contention was not specifically raised in the memorandum of appeal. It was contended that in the memorandum of appeal a general ground was raised about limitation. The learned Counsel then submitted that even though the ground is not raised specifically, in view of the judgment in the case “Baby Samuel Vs. Assistant Commissioner of Income-Tax, (2004)138 Taxman 192 (Bom)” to which one of us (Justice J.P.Devadhar) is a 3 party, because in the written submission the submissions were made, the plea should have been considered by the Tribunal. 2. In our opinion, the judgment of the Division Bench does not support the petitioner. Even, according to the petitioner, for the purpose of counting period of limitation the second panchanama could not have been taken into consideration, then it was for him to take a specific plea in the memorandum of appeal as to why the second panchanama is invalid. Having not raised the ground of invalidity of that panchanama, he could not have on the basis of general ground in the memorandum of appeal regarding limitation merely argue that point. The general ground in the memorandum of appeal reads that “As the original order u/s.143(3) is passed beyond the time permitted u/s.143(3) r.w.s. 158 of the I.T.Act,1961.” In our opinion, considering the ground raised in memorandum of appeal, permitting the petitioner to argue that because the second panchanama was invalid, it could not have been taken into consideration for the purpose of limitation, and therefore, the 4 original order was not passed within the period of limitation, would be violative of the principles of natural justice. Because in the memorandum of appeal grounds are required to be raised so that the other side gets precise notice of the grounds on which the order is challenged so that the respondent can raise his defence. Reading of the ground relied on by the appellant shows that it will not give notice to the other side as to why the appellant contends that the order is not passed within the period of limitation. If the petitioner wanted to contend that according to him the order is not passed within the period of limitation because the second panchanama was invalid, it was for the appellant to raise that contention specifically. As that contention was not raised specifically, in our opinion, the Tribunal was justified in rejecting the contention of the appellant as it has done. 3. Taking overall view of the matter therefore, we do not see any substance in the petition. The petition, is therefore, rejected. 5 (D.K.DESHMUKH, J.) (J.P.DEVADHAR, J.) ---