TMI Blog2004 (1) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... assess the undisclosed income under the provisions of Chapter XIV-B. To substantiate his contention, he drew our attention to the factual aspects with reference to the material on record. He invited our attention to the copy of the Panchnama appearing at p. 1 of the paper book to point out that the search was carried out at the residential premises of the assessee, i.e., D-9, Pamposh Enclave, New Delhi-48 with telephone No. 6292348. He then referred to p. 32 of the paper book which is the copy of the notice issued by the AO under s. 158BC asking the assessee to file the return to point out that notice was sent at the old address, i.e., B-13D, Gangotri Enclave, Alaknanda, New Delhi-18. It was pleaded by him that despite the fact that the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is counsel Shri S.P. Chadha, CA, who maintained that he had not received the notices and the letter. However, the photocopies of the same were supplied to that. In this connection, it has been submitted by the learned counsel for the assessee that the so-called letter had never been served upon the assessee. In support of his contention, he also relied upon the decision of the Tribunal in the case of Dr. K.C. Verma vs. Asstt. CIT (2004) 89 TTJ (Del) 129 : (2003) 84 ITD 33 (Del) which has been confirmed by the Hon ble Delhi High Court CIT vs. Dr. K.C. Verma (2003) 185 CTR (Del) 231 wherein it has been held that assessment was bad in law for want of service of notice. 3. On the other hand, the learned Departmental Representative has heavily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this stage, it may be mentioned that on 31st Dec., 2003, the learned Departmental Representative informed that there is no evidence in the record to prove the service of the letter dt.13th Dec., 2001. 5. Rival submissions of the parties have been considered in the light of the material placed before us. In our opinion, there is a substantial merit in the legal contention raised by the learned counsel for the assessee. The special provisions have been enacted by the legislature for assessing the undisclosed income of the assessee in cases where the search is initiated after 13th day of June, 1995. Such provisions are contained in Chapter XIV-B. Sec. 158BA provides that in such cases the AO shall proceed to assess the undisclosed income in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was conducted at the old address since the assessee had left that place. The factum of search itself shows that the Revenue was well aware of the new address where the assessee was residing. In such circumstances, the AO was duty bound to issue the notice at the correct address. It is also surprising to note that the search was conducted on17th Dec., 1999but the AO did not issue any notice till October, 2001. It was only when the assessment was getting time-barred that the AO issued notice perhaps in a hurry at the old address. According to the evidence placed on the record, it is clear that the said notice was returned to the sender by the postal authorities as is apparent from letter of the Senior Superintendent of the Post Office,New ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue has not been able to establish that any notice under s. 158BC was served upon the assessee. Mere issuing of notice under s. 158BC, in our opinion, does not confer jurisdiction upon the AO to make the assessment inasmuch as service of such notice is a condition precedent to proceed to make the assessment of undisclosed income. Since the Revenue has not been able to establish the service of notice, it is held that assessment made by the AO was without jurisdiction and consequently, null and void. 7. Before parting with this order, we would like to dispose of the plea of learned Departmental Representative regarding applicability of s. 292B. In our considered opinion, s. 292B has no application to the facts of the present case. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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