TMI Blog2008 (11) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... es: "(1) Challenging the validity of service of notice and consequential order passed under s. 144 in the absence of assessee and any enquiry. (2) Challenging the action of the CIT(A) in rejecting the additional grounds raised by the assessee. 4. Both the parties were heard regarding the issues raised by them in their respective appeals. 5. During the course of hearing the learned Departmental Representative has vehemently argued supporting the orders passed by Departmental authorities and assailing the issues raised by the assessee in its cross-objections and the finding of the CIT(A) in deleting the addition made by the AO and thereby sought for allowing Departmental appeal and dismiss the cross-objection of the assessee. 6. Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ysing the same in the light of rival submissions the undisputed facts of the issues are that the assessee has filed its return in reply to the notice received from the AO under s. 142(1) of the Act on 1st Nov., 2002. Afterwards the AO issued notice under s. 143(2) on 4th July, 2003 which was served on the assessee. In pursuance of that after some adjournments on 3rd March, 2004, Shri Kewal Chand Dakalia (assessee) has attended with learned chartered accountant Shri S.M. Jain filing certain details in respect of questionnaire issued on 6th Feb., 2004. Thereafter hearing was adjourned to 9th March, 2004. The assessee is carrying on business in shares as sub-broker. The main share brokers are Hem Securities Ltd., Bombay. The assessee had shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under s. 143(2) was issued beyond the period prescribed under the Act, thereby it is not a valid notice and consequential assessment order passed is also not tenable under law. While adjudicating this appeal of the assessee the CIT(A) has asked for remand report from the AO wherein the AO has stated that notice under s. 143(2) dt. 4th July, 2003 was served by affixture and none appeared in response to that. Thereafter a query letter was issued on 13th Feb., 2004. He further stated that notice under s. 143(2), dt. 4th July, 2003 was served on the representative of the assessee Shri P.M. Chopra who has filed power of attorney placed on record. Thereafter, notice was issued fixing the hearing of the case on 17th July. 2003 which is within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osits but they relate to transactions in shares and securities. Thereby, he deleted the addition made by the AO. Aggrieved by this order passed by the CIT(A) the Department has filed the present appeal whereas the assessee has filed cross-objections stated supra. 9. On careful consideration of the material made available before the Tribunal and analysing the same in the light of rival submissions as well as the orders passed by the Departmental authorities, it is found that undisputedly there is survey and the assessee has filed return in response to notice issued under s. 142(1) through the learned chartered accountant Shri S.M. Jain who has filed power of attorney along with return. Shri P.M. Chopra, learned chartered accountant was giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case can never be said to be a valid one as there is no proper service of mandatory notice of s. 143(2) of the Act as required under law. Therefore, the assessment passed by AO in the present case is itself unsustainable for legal scrutiny and same is hereby quashed. Accordingly the contra finding given by the CIT(A) in the impugned order is hereby set aside accepting the issues raised by the assessee in its cross-objections. 10. Since the CIT(A) while deciding the issue of addition of Rs. 10,09,500 is concerned it is found that the CIT(A) has directed deletion of same as per the records produced before him by the assessee they are only cash received from parties pertaining to shares and securities but not otherwise. Therefore, that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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