TMI Blog2014 (11) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn in Ward-24(1), New Delhi is the finding of the fact recorded in the order which also has been confronted to the AO and not denied by him and also not rebutted before us by the Revenue in the present proceedings - the service of notice by way of affixtures from 31.03.2008 to 28.11.2008 on the premises i.e. 130D, Kamla Nagar has been taken cognizance by the CIT(A) to hold that the notices were not served at the correct address - the CIT(A) also proceeds to consider the fact that the AO could have obtained the correct address from the bank account of Vijaya Bank as the complete address was available there - This fact also stands unrebutted on record - the CIT(A) ought to have quashed the proceedings and there was no need to proceed to adjudicate upon the additions on merit - the reasoning taken by the CIT(A) on merits also has not been assailed by the Revenue either by referring to any fact or evidence – Decided against revenue. - I.T.A .No. 3333/Del/2010, Co. 385/Del/2011 - - - Dated:- 17-10-2014 - Smt. Diva Singh And Shri J. S. Reddy,JJ. For the Appellant : Sh. Manoj Kumar Chopra, Sr. DR For the Respondent : Sh. V. K. Goel, CA ORDER Per Diva Singh, JM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be dismissed as the address of the assessee was not correctly mentioned. Service of the notice on the assessee is essential prerequisite for the valid proceedings u/s 147/148. 7. That the CIT(A) under the law and facts correctly deleted the addition of ₹ 108000/- made by the AO u/s 68 of the Income Tax Act.] 8. That the CIT(A) under the law and facts correctly deleted the addition of ₹ 665815/- made by the AO on account of unexplained investment. 9. That the CIT(A) under the law and facts correctly deleted the addition of ₹ 1089423/- made by the AO towards the profit on estimate basis. 10. Any other ground which may be taken subsequently. 3. Right at the outset, Ld. Sr. DR was required to address whether the department has any objection to any document filed on record. Attention of the Ld. Sr. DR was invited to the paper book available on record consisting of 128 pages filed on 30.11.2011 and the ld. Sr. DR was also required to address whether he was prepared to also agree the grounds in the Cross objection filed by the assessee. The said query was necessitated as in the past it has been found that frequently after devoting time to the argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent year 2001-02 were audited by the auditors u/s 44AB of the Income Tax Act. Later on ITO ward 20(1) New Delhi on the basis of information from Additional DIT (Investigation) vide letter dated 26.03.2008 that M/s New Age Overseas has received a cheque of ₹ 1,08,000/- from Sunita Bhagchandka on 25.10.2000 who has been involved in providing accommodation entries, issued notice u/s 148 on 28.03.2008 and served the notice through affixture on 31.03.2008. Subsequent notices u/s 143(2) and 142(1) were also served through affixture. None appeared on behalf of the appellant therefore assessment was completed u/s 144 of the Income Tax Act determining the income at ₹ 18,63,240/-. 5.1. On the basis of the same the action of the AO was assailed. Apart from the above it was also submitted that the assessee has to be a person as defined u/s 2(7). Referring to the definition of person u/s 2(31) of the Act it was submitted that neither the assessee nor M/s New Overseas was in existence at 130/13-D, Kamla Nagar, Delhi-110007 the address at which the AO is claiming to have served the notice to the assessee by affixture. The copy of the affixture provided to the assessee was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The record shows that these submissions were remanded to the AO by the CIT(A) for his comments. Considering the objections of the AO and the re-joinder of the assessee the CIT(A) proceeded to decide the issue vide paras 8.1 to 8.4 dealing with the additions on merit and also on facts in the afore-said manner:- 8. Determination 8.1. I have carefully considered the submissions made by the appellant along with the remand report of the Assessing Officer. This is a fact that the assessment has been made in the name of M/s New Age Overseas in the status of an individual while M/s New Age Overseas is not a human being but is a proprietary concern of Mr Daljit Singh. Mr Daljit Singh is a regular assessee having the PAN ALVPS 1043H. The return of the impugn Asstt.Year 2001-02 was filed by the appellant in Ward 19(2) New Delhi as on 05.07.2001 along with copy of duly audited accounts u/s 44AB of the Income Tax Act the copy of which has been filed before me. The income declared is ₹ 2,78,410/- which included ₹ 2,31,187/- income from the proprietary firm M/s New Age Overseas. The appellant subsequently shifted to B-7, Green Park Extension, New Delhi and submitted his subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport. The assessing officer without bringing any contrary material on record simply stated that this is merely an after thought as this was not produced by the assessee during assessment proceeding. This is a fact that since notices were sent through affixture neither appellant nor his authorized representative appeared before the assessing officer. Under these facts and circumstances I do not agree with the assessing officer that this is an after thought submission. Since the amount don't represent the cash credit I there fore delete the addition of ₹ 1,08,000/-. 8.3. Ground No. 10 relate to addition of ₹ 6,65,815/-- as an unexplained investment. After carefully examining the submissions of the appellant as well as remand report of the assessing officer I find that the sum of ₹ 6,65,815/- is in fact closing balance of the bank account as on 14.11.2000. This bank account stand duly disclosed by the appellant in his regular books as is apparent from the audited accounts of the assessee which were duly filed by him with his return of the impugn assessment year with ITO ward 19(2) as on 05.07.2001. This amount does not represent the deposit made by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Nos.1 to 4. Specific attention was invited of the Ld. Sr. DR to Ground No-4 in the CO. The Ld. Sr. DR on facts did not rebut the findings in Page No-8.1 and for the deletion of the additions on merit placed reliance upon the assessment order. 7. The Ld. AR on the other hand referring to Ground Nos.7 to 9 in the C.O. filed placed heavy reliance on para 8.2 to 8.4 and qua the findings arrived in para 8.1 which as per Ground No-4 raised in the C.O. which has not been assailed by the Revenue submitted relying upon Ground Nos.1 to 6 of the C.O. filed that the assessment on facts should have been quashed and CIT(A) erred on facts in not quashing the same. 8. We have heard the rival submissions and perused the material available on record. The fact that the assessee was the sole proprietor of M/s New Age Overseas and filed the return for the year under consideration on 05.07.2001 declaring an income of Rs,2,78,410/- has not been disputed by the Revenue. Similarly the finding of fact that this income included the income of ₹ 2,31,187/- from the proprietary firm M/s New Age Overseas has also not been rebutted. It is also a fact on record that against this return filed on 05.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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