TMI Blog2021 (10) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in this appeal:- 1. That the CIT(A) erred in law and on facts in not appreciating that the order of the Income tax Officer, Ward 1(3), Chandigarh, is illegal and is liable to be quashed. 2. That the CIT(A) erred in law and on facts without appreciating that the mandatory notice u/s. 143(2)(i) of the Income tax Act was not served on the appellant validly and also not upto 31.5.2003, hence the entire assessment proceedings are void ab initio. 3. On the facts and circumstances of the case, the Ld. CIT(A) erred in upholding the AO's action of treating the amount of ₹ 7,76,051/- received by the appellant as part of salary and confirming the addition ignoring that the same to be capital receipt as claimed by the appellant. 4. That the Ld. CIT(A) erred in upholding AO's act of holding the view that the amount received as compensation for loss of employment in pursuance of a court order tantamount to part of salary, particularly when there is no relationship of employer and employee for the relevant period for which the compensation/pecuniary benefits were received by the appellant and particularly when the appellant was reappointed with 50% of the pecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. GROUND No. 2:- In this ground the appellant has argued that the notice u/s. 143(i) was not served on him validly, hence the assessment proceedings are void ab-initio. 1. OBSERVATION OF THE A.O.:-The AO has not made any observation on this issue in the assessment order as this issue was not raised before the AO. 2. SUBMISSION OF THE A.R.:- During the appellate proceedings, the Appellant has furnished following online written submission on this issue, through E-filing portal dated 20.03.2021. 1) As gathered from the impugned assessment order, statutory notice u/s. 143(2)(i) was issued dt. 30.5.2003. The assessee had filed the ITR on 25.07.2002. As per the provisions of s. 143(2)(i) then in force, this notice should have been served on the assessee on or before 31.5.2003. The notice was not received by the assessee but at her residence by her maid on 1st June, 2003, The relevant extract of s. 143(2)(i) is reproduced as under: [(2) Where a return has been furnished under section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer shall,- (i) where he has reason to believe that any claim of loss, exemption, deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be followed by the AO while completing the block assessments under Chapter XIVB-If the intention of the legislature was to exclude the provisions of Chapter XIV] it would have indicated that-Therefore, if the AO, for any reason, repudiates the return filed by the assessee in response to a notice under s. 158BC(a), he must necessarily issue notice under s. 143(2) within the time prescribed in the proviso to s. 143(2)-When s. 158BC(b) specifically refers to applicability of s. 143(2), its proviso cannot be excluded- There is no reason to restrict the scope and meaning of the expression 'so far as may be apply'- Further, s. 158BH provides for application of the other provisions of the Act which specifically includes s. 142 and sub ss.(2) and (3) of s. 143. b. Anil Kisanlal Marda Vs ITO (ITAT Pune) XTA No. 1763/PUN/2013 dtd, 01/07/2019 Since no effort was made by AO to serve another notice u/s. 143(2) before the deadline after returning from postal authorities the original notice u/s. 143(2) thus, the jurisdictional condition of 'service' of notice u/s. 143(2) and not its 'issue' was not satisfied and accordingly, assessment order passed in absence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply was to be given to the said application under RTI Act within 30 days, however, till date no reply has been given by the Assessing officer which clearly establishes that the notice was not served upon the assessee but on his maid on 01.06.2003 that too after expiry of the relevant period i.e. 31.5.2003. Therefore, without serving the notice u/s. 143(2) of the Act to the assessee, the assessment framed by the Assessing officer was not valid. Reliance was placed on the judgement of the Hon'ble Supreme Court in the case of ACIT Another Vs. Hotel Blue Moon reported at 321 ITR 362(SC). 10. In his rival submissions, the Ld. DR reiterated the observations made by the Ld. CIT(A) in the impugned order and strongly supported the said order. 11. We have considered the submissions of both the parties and perused the material available on record. In the present case, it is not in dispute that the limitation period for serving notice u/s. 143(2) (i) of the Act was up to 31.5.2003 and the Assessing officer issued the notice on 30.5.2003. It was claimed by the Assessing officer that the said notice was served on the same date i.e. 30.5.2003. On the contrary, the claim of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
