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2019 (7) TMI 864 - AT - Income TaxAppellate order is antedated - allegation to not follow CBDT Instructions that CIT(As) have been advised to pass and issue orders within 15 days from the date of last hearing - alleged that order passed in July,2013 - ld. CIT(A)-II, Pune actually concluded the hearing on 20-03-2013 and passed the order on 25-03-2013, but the same was dispatched late, along with several other orders passed by him in the month of March, 2013 - HELD THAT:- If, for a moment we accept the contention of the assessee for quashing the impugned order, being, illegal on the raison d’etre advanced, a contention with which we do not actually agree, a fortiori which would follow is that the assessment order would revive in the absence of there being any valid first appellate order. It would again require direction from our end to the CIT(A) to pass an order as the appellant urging the quashing of the impugned order in this case is the assessee and the impugned order has been passed against him. On a specific query as to how the assessee was prejudiced by the supposed antedating of the impugned order in terms of either some limitation setting in or the right to file appeal against it being jeopardized, the AR candidly admitted that no such legal right of the assessee was impaired. In view of the foregoing discussion, we hold that the allegation levelled by the assessee that the impugned order was antedated by the ld. CIT(A), is not correct and is hereby rejected. The first additional ground is, ergo, dismissed. Non-service of notice u/s.143(2) - validity of reopening of assessment - HELD THAT:- The assessee has placed on record a copy of his letter dated 28-11-2011 addressed to the DCIT objecting to the service of notice dated 08-09- 2010 purportedly issued u/s. 143(2) and served upon him and stated that “I would like to state that the said notice 08-09-2010 has not been received by me”. The assessment order in this case was passed on 30-12-2011. Thus, it is proved that the assessee did raise objection of the non-service of notice before the AO before the completion of assessment and such an objection has not been disposed of by the AO either in the assessment order or otherwise. It is evident from the assessment folder that notice u/s.143(2) dated 08-09- 2010 was issued but never served upon the assessee and, in fact, returned by the postal authorities. It is further clear that no other notice u/s. 143(2) was issued by the AO before the cut-off date of 30-09-2010. Accordingly, proviso to section 292BB gets magnetized and the deemed service of notice u/s.143(2), by virtue of the main part of the section 292BB, is erased. Since the requirement of ‘service’ of notice u/s. 143(2) and not its ‘issue’, is a jurisdictional condition, which is unfortunately lacking in the instant case, the sequitur is that the AO lacked jurisdiction to make the assessment. Ex consequenti, the assessment order passed in absence of a valid jurisdiction has to be and is hereby quashed. - Decided in favour of assessee.
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