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2016 (1) TMI 1341 - AT - Income TaxReopening of assessment - proof of issuance / receipt of notice u/s 143(2) - reasons to believe - Held that:- here was no fresh tangible material forwarded by the ADIT (Inv.) vide letter dated 24.03.2011 which was the foundation on which the AO has made up his mind on 25.03.2011, to reopen the original assessment completed u/s 143(3) of the Act which was supervised by Additional Commissioner u/s 144A and thereafter the Commissioner exercising his revisional power u/s 264 of the Act. Also, we find force in the contention of the ld. AR that there was no evidence in the hands of the AO while he took the sanction of Commissioner u/s 151(2) to reopen the original assessment completed u/s 143(3) after 4 years. The process of manufacture of the Pan Masala was already on record during the original assessment and simply by saying that manufacturing process from stage ‘A’ to ‘H’ did not take place at the eligible unit without a shred of evidence to support the said information cannot be termed as a new tangible material and link to base a reason to believe escapement of income. Therefore, the entire reopening is vitiated on this count. In the present case, the ld. DR could produce before us only an order sheet dated 24.11.2011 wherein it is written by the AO that notice u/s 143(2) has been issued; other than that there is no mention of the mode of service, when it was dispatched etc.. Her assertion that the Director and GM (Taxation) has appeared before the AO on 28.11.2011 goes to show that they have appeared pursuant to the receipt of notice u/s 143(2) cannot be accepted because it is clearly written on the order sheet on 28.11.2011 by the AO that the assessee had submitted objection in respect to reopening of the assessment and this fact is stated by the AO in the impugned reassessment order. We had given time and directed the ld. DR to file affidavit, if any, of the AO to support the claim of issuance / dispatch / service of the 143(2) notice, however, we find that the ld. DR have not filed any affidavit on behalf of the Department to support their contention that AO in fact had issued the notice. The ld. DR fairly conceded that neither could she trace a copy of the notice u/s 143(2) nor could bring copy of the dispatch register to buttress her claim that in fact, notice u/s 143(2) had been issued. In such a scenario, mere order sheet entry without following up by issuance 143(2) notice as required by law and dispatching the same to the correct address of the assessee and by merely mentioning that 143(2) notice has been issued in the show cause notice for special audit cannot substitute the mandatory requirement of law in respect to issue of notice u/s 143(2) in reassessment proceedings as held by Hon’ble Supreme Court in Hotel Blue Moon (2010 (2) TMI 1 - SUPREME COURT OF INDIA). Therefore, on this count also, the assessee succeeds and the entire reassessment proceedings is vitiated for non-issuance of 143(2) notice by the AO. - No material neither tangible nor incriminating material in the hands of the AO to assume jurisdiction to reassess the assessee, so AO has erroneously usurped jurisdiction which law does not permit him to do on the reasons given above, so the entire action of AO is ab-initio void and is quashed. - Decided in favour of assessee.
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