ORDER
Archana Wadhwa, Member (J)
1. Shri S.K. Bagaria, Ld. Sr. Adv. appearing for the appellant has argued on the point of limitation reserving his right to contest the case on merits, in case the decision on the point of limitation goes against him.
2. Arguing on the point of limitation Shri Bagaria has fairly agreed that the assessments during the relevant period were provisional and as such strictly speaking the provisions of Section 11A would not apply. However, he submits the fact of assessments being provisional was not considered by the adjudicating authority or there was no mention of the same in the show cause notice. The notice proposed to confirm the demand by invoking longer period of limitation. He submits that once the fact of assessments being provisional was not considered by the Commissioner, the same looses its ground and the issue should be decided on the basis of the facts as disclosed in the notice or as discussed by the adjudicating authority. In support of his submission that the success or failure of the case should depend upon the facts as present in that case and no new fact should be allowed to be introduced as the appeal stage, he referred to various decisions and judgments.
3. Countering the arguments Shri Rajen Mohapatra, Ld. Adv. appearing for the Revenue submits that though the Commissioner has invoked the longer period of limitation, without appreciating the fact that the assessments were provisional, the fact however, remains that they were provisional and as such the limitation will not apply. He submits that it is not a new fact and the only omission is that the adjudicating authority has not considered the same at the time of passing of the order.
4. We have considered the submissions made by both the sides as also the various decisions relied upon by the Ld. Adv. appearing for the appellant. We find that the ratio of the said decisions laying down that no new case should be made at the appeal stage are not applicable to the facts of the instant case inasmuch as it is an undisputed fact that the assessments were provisional. It is not a fact which is being brought on record for the first time by either side. If the said fact has not attracted attention of the adjudicating authority while passing order, it cannot be said that the said fact would loose its importance. Undisputedly the assessments were provisional in which case there is no question of any time bar. As such we do not find any merits in the above contention of the Ld. Adv. and reject his plea of limitation. The appeal is now listed for regular hearing on merits on 19.4.2004.