Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2015 (6) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (6) TMI 1246 - AT - Income TaxNon service of notice u/s 143(2) - No proof of issue by speed post - HELD THAT:- The notice in question u/s 142(1) and 143(2) have not been served on the assessee though there is proof of issue by speed post, of only one notice at the address 5/5/81, Janta Flats, Sector 5, Rohini, Delhi 81. Which notice was sent is not known. There is no positive proof produced before us of serving of the notice u/s 143(2). The assessee in his return of income has shown the address as C-5/5/81, Janta Flats, Sector 5, Rohini, Delhi 85, and whereas all the notices except one have been sent to the address Door no.C- 5/81, Sector 5, Rohini, Delhi. As only one notice is said to have been sent to the address C-5/5/81, we at best can presume that one notice was served as the assessee. We do not know which is that notices. The fact that in the tax audit report and in the bank papers the address was noted as C-518, Sector 5, Rohini, Delhi, does not take us to the conclusion that the notice in question has been served on the assessee in the absence of any evidence, when the assessee has specifically denied service. Thus we hold that non service of notice u/s 143(2) results in the assessment order becoming bad in law. This is true even when the assessments are under normal provisions of the Act. Reliance is placed on the judgement in the case of ACIT vs. Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT] Whether the provisions of S.292BB would come to the rescue of the Revenue? - AO has wrongly assumed jurisdiction under the Act. We also hold that, this defect in the assumption of jurisdiction by the AO cannot be cured by taking recourse to the deeming fiction u/s 292 BB - Thus we dismiss the contentions of the Ld.D.R. as devoid on merit. Whether the First Appellate Authority had admitted additional evidence? - In our view no additional evidence has been admitted by the Ld.CIT(A) in this case. The AO has treated the account held by the assessee in Punjab National Bank as the Savings Bank account and whereas it was actually a current account. This was factual mistake committed by the A.O. The Ld.CIT(A) has also examined the books of accounts of the assessee and has observed that the deposits in the current account in the bank is less than the sale figure. Addition u/s 68 - unexplained deposits - As assessee had explained the deposits made in its current account. The sales were disclosed and it was these sales that were appearing as deposits in the bank account. DR could not controvert the factual finding of the Ld.CIT(A). Thus we uphold the same and dismiss this appeal by the Revenue. We allow the Cross Objection filed by the assessee.
|