Rajiv Kumar Gupta, Ghaziabad vs Assessee

Appellant by : Shri Anil Jain, CA Respondent by : Shri Manoj Kumar Chopra, Sr. DR

ORDER

PER T.S. KAPOOR, AM:

This is assessee's appeal filed against the order of Ld. CIT(A) dated 13.07.2012. The assessee has taken 8 grounds of appeal out of which ground No.2 is regarding non service of notice issued u/s 143(2) of the Act. Other grounds include the challenge by assessee that Ld. CIT(A) cannot uphold a protective assessment in the case of assessee in view of the fact that substantive assessment were already completed.

2. The said appeal was earlier heard on 16.07.2014 on the ground that Ld. CIT(A) cannot confirm the addition on protective basis in a case where substantive additions were already confirmed. However, the case was listed for certain clarifications and was finally heard on 15.10.2014. Thereafter, again the case was released for re-hearing. However, Hon'ble Vice President vide his order dated 18.12.2014 required the members to pass 2 ITA No.4859/Del/2012

appropriate orders as the case was already heard on two occasions, therefore, this case was finally heard on 21sts January 2015. Ld. A.R. raised his earlier grounds regarding non sustenance of protective assessment but also raised issue as raised in ground No.2 that notice was not served on the assessee and, therefore, the assessment was void and in support has filed various case laws wherein, it has been held that in case of non service of notice u/s 143(2), the assessment stands void. The following case laws were relied upon by Ld. A.R. :

i) ACIT Vs Hotel Blue Moon (S.C.) 321 ITR 362 ii) CIT Vs Mascomptel India Ltd. 345 ITR 58 iii) CIT Vs Lunar Diamond Ltd. 281 ITR 01 iv) Reliance was also placed on other case laws as placed in paper book pages 8-35.

3. Ld. A.R. further submitted that the assessee had been filing his return of income as K, 108/109, IInd Floor, Laxmi Nagar, Main Market, Delhi and in this respect filed copies of return for Assessment Years 2007-08 & 2008- 09, 2010-11, 2011-12. It was submitted that the assessee had field return of income for the year under consideration on 31.03.2010 from the same address as is evident from assessment order itself. It was submitted that the department had issued first notice u/s 143(2) dated 24.09.2010 addressed at E-25-26, Katrani House, Jawahar Park, Laxmi Nagar, Delhi which was not served on the assessee and the original was lying in the assessment records. It was submitted that the revenue had issued this notice at the address where assessee was covered under survey on 23.08.2008 whereas, it is an admitted fact that the assessee had been filing his return with address at K-108/109, 3 ITA No.4859/Del/2012

IInd Floor, Laxmi Nagar, Main Market, Delhi, therefore, Notice u/s 143(2) was to be issued at above address only. He further submitted that notice u/s 143(2) dated 30.09.2011 was received by assessee for the first time on 07.10.2011 which was addressed at 05/127, 1st Floor, Rachna Lane, Vaishali, Ghaziabad which was the residential address of the assessee and which was time barred notice and on receipt of the same, assessee immediately filed a letter with the A.O. claiming that the notice was illegal. In this respect, our attention was invited to paper book page 4 where a copy of letter dated 04.11.2011 written by assessee regarding belated receipt of notice as duly received by office of ACIT CC-II, was placed. Ld. A.R. further submitted that the findings of Ld. CIT(A) that the delay in service of notice was covered by Section 292BB of the Act was not correct in view of the fact that assessee had raised specific objection as is evident from the said letter. As regards the date of first notice as mentioned on assessment order as 25.08.2010, Ld. A.R. submitted that the date was in fact 25.08.2011 as is noted by Ld. CIT(A) in his order at para 6.2. In view of the above facts and circumstances, it was submitted that the case of assessee was fully covered by the decisions of various courts.

4. Ld. D.R. on the other hand relied upon the orders of authorities below.

5. We have hard rival parties and have gone through the material placed on record. Ld. D.R. was asked to bring assessment records and from assessment records as produced by Ld. D.R., original unserved notice dated 24.09.2010 was found placed in the assessment file, therefore, it can be concluded that this notice was not served. The notice u/s 143(2) dated 30.09.2011 was received by assessee on 07.10.2011, which is time barred as 4 ITA No.4859/Del/2012

the notice should have been served upon assessee before 30.09.2010. The assessee vide letter dated 04.11.2011 which was duly received by the office of A.O. on 08.11.2011 had objected to the receipt of belated notice and, therefore, the findings of Ld . CIT(A) that's the assessee should have raised objection before A.O. is also not correct. As per this letter, assessee raised the objection and therefore, the case of assessee is not covered by provisions of Section 292BB of the Act. We further find that the date of 25.08.2010 as mentioned on first page of assessment order is in fact 25.08.2011 which has been duly noted by Ld. CIT(A) vide his order at para 6.2. For the sake of convenience, said para is reproduced below:

"Vide ground No.3.2 the appellant has challenged the jurisdiction of the A.O. to frame assessment. This ground of the appellant has no force as while passing the assessment order the A.O. has categorically mentioned that ht case of the appellant was centralized consequent upon an action u/s 133A of the I. T. Act, 1961 and a notice u/s 143(3) was issued by speed posts on 24.09.2010. The anomaly pointed out in respect of date of issue of notice u/s 142(1) prior to the dt. of notice u/s 143(2) in the assessment order 1sts para, is examined from assessment record and it was found that said notice was issued on 25.08.2011 but inadvertently mentioned in the 1st para of the order as 25.08.2010 thus the objection of the appellant is without any basis. The appellant did not raise objections with regard to the jurisdiction before the A.O. and raising it now in terms of section 292BB, the objection should have been raised after received a notice before the A.O. which was not done. Therefore, the appellant is precluded from taking some objection at appellate stage. In view of above this ground of appellant is not maintainable and hence, rejected."

6. From the facts and circumstances of the present case, we find that it is a fact that assessee has been filing his return of income from F-108/109, IInd 5 ITA No.4859/Del/2012

Floor, Laxmi Nagar, Market, New Delhi as is apparent from the copy of I.T. return and notice u/s 143(2) ought to have been served on assessee on or before 30.09.2010 and, therefore, the notice served on assessee on 07.10.2011 is time bared which the assessee had duly objected and therefore, the case of the assessee is duly covered by the decision of Hon'ble Jurisdictional High Court wherein it has been held that service of notice u/s 143(2) is mandatory and without service of notice, the assessment had become null and void. Hon'ble High Court in the case of CIT Vs Mascomptel India Ltd. in the case of CIT Vs Mascomptel India Ltd. 345 ITR 58 under similar circumstances held as under:

"The Commissioner of Income-tax (Appeals) and the Tribunal have held that the aforesaid service by the affixture was not valid. The findings of the Commissioner of Income-tax (Appeals) and the Tribunal are that the assessee had mentioned a different address in the return of income- tax filed for the assessment year in . question. In the return of income- tax the address mentioned was 1-GF, AGCR Enclave, Karkardooma, Delhi. , They have held that the assessee was earlier functioning from 44-Rajendra Shawan, Rajendra Place, New Delhi, and had shifted from the said address in 2001. It has also come on record that the TDS Officer (who was also the Assessing Officer) had issued notice dated October 1, 2007, at I-GF, AGCR Enclave, Karkardooma, Delhi. The said address was also mentioned in the balance-sheet, profit and loss account, tax audit report as well as the assessment order under section 143(3) dated February 30, 2007, for the assessment year 2005-06, i.e., the immediately preceding assessment year.

The aforesaid facts speaks for themselves. No attempt was made to serve the respondent-assessee at the correct address which was available with the Department and in fact stated in the return of the income for the assessment year 2006-07. Subsequent attempt to serve another notice under section 143(2) at I-Gf, AGCR Enclave, 6 ITA No.4859/Del/2012

Karkardooma, Delhi, in November, 2008, long after the expiry of the limitation period prescribed by the proviso, cannot help the Revenue.

7. We find that the grievance raised by the assessee is fully covered in favour of assessee, therefore, we allow Ground No.2, therefore, assessment order passed by A.O. is null and void. As we have annulled the assessment order, the other grounds of appeal filed by assessee have become infructuous.

8. In view of above, appeal filed by assessee is allowed.

9. Order pronounced in the open court on 30th Jan., 2015.

Sd./- Sd./- ( I. C. SUDHIR) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER Date: 30.01. 2015 Sp Copy forwarded to:- 1. The appellant 2. The respondent 3. The CIT 4. The CIT (A)-, New Delhi.

5. The DR, ITAT, Loknayak Bhawan, Khan Market, New Delhi. True copy.

By Order (ITAT, New Delhi).

S.No. Details Date Initials Designation 1 Draft dictated on 27/1 Sr. PS/PS 2 Draft placed before author 27,28,29, Sr. PS/PS Draft proposed & placed before the Second 3 JM/AM Member Draft discussed/approved by Second 4 AM/AM Member 5 Approved Draft comes to the Sr. PS/PS Sr. PS/PS 6 Kept for pronouncement Sr. PS/PS 7 File sent to Bench Clerk Sr. PS/PS 8 Date on which the file goes to Head Clerk 9 Date on which file goes to A.R. 10 Date of Dispatch of order 7 ITA No.4859/Del/2012