TMI Blog2013 (1) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... ss arises only after the notice has been issued. Moreover in the case of Alpine Electronics Asia P. Ltd. Vs. Director General of Income Tax [2012 (1) TMI 100 - DELHI HIGH COURT] held that notice u/s 143(2) is mandatory in reassessment proceedings and it is not a procedural requirement. Thus reassessment proceedings completed in above cases without issuing of necessary notice u/s 143(2) were bad in law and hence were void ab initio - appeals filed by assessee are allowed. - ITA No.4719 & 4720/Del/2011 - - - Dated:- 16-1-2013 - Diva Singh And T.S. Kapoor, JJ. Appellants Rep by: Shri Ved Jain, Miss Rano Jain Shri Venketesh Chourasia, CAs Respondent Rep by: Smt Meeta Sinha, Sr. DR ORDER Per: T.S. Kapoor: These are two appeals filed by the assessee against the combined order of CIT (A) dated 30/8/2011. 2. The grounds of appeal taken by assessee in both these years are similar, however, the amount as per ground no.7 in both years is different which is Rs.32,85,500/- in respect of A.Y. 2005-06 and Rs.30,41,975/- for A.Y. 2006-07. Moreover the assessee has taken additional ground in A.Y. 2006-07 which is recorded as ground of appeal no. 11. For the sake of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as erred both on facts and in law in rejecting the contention of the appellant that no reliance can be placed on the statement of Sh. S.K. Gupta recorded at the back of the assessee without providing cross examination. 9. On the facts and circumstances of the case, the learned CIT (A) has erred both on facts and in law in rejecting the contention of the appellant that the A.O. has misinterpreted the statement of Sh. S.K. Gupta has wrongly used the same against the assessee, as the appellant has not been named in the said statement there is no allegation against it coming out of the said statement. 10. On the facts and circumstances of the case, the learned CIT (A) has erred both on facts and in law in arbitrarily rejecting the evidence submitted in support of the expenditure incurred despite the fact that even in the remand report A.O. has not pointed out any defect and has not given any adverse comment on that. 11. On the facts and circumstances of the case, the learned CIT (A) has erred both on facts and in law in rejecting the contention of the appellant that the appellant being eligible for deduction u/s 10B the same was required to be recomputed on the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to the law explained above, if notice is not issued and served u/s 143 (2), then, it will affect the validity of re-assessment order. In this view of the situation, without going into other grounds, we are of the opinion that these matters requires to go back to the CIT(A) to determine such fact and re-adjudicate the matter again by keeping in view the aforementioned law explained in the above part of this order. We direct accordingly. Since we are restoring these appeals to the file of CIT (A), to adjudicate on the legal issue which affects the very validity of the assessment orders, we do not express any opinion on merits of the addition and other grounds which have been agitated by the assessee in the present appeals as they can be decided only after determination of the legal issue regarding issuance and service of notice u/s 143 (2). 4. The ld. CIT (A) vide his order for both these years after being remanded back from Hon ble Tribunal held that notice u/s 143(2) was not issued however he held against the assessee. The relevant portion of ld. CIT (A) order is reproduced below: 2.2 In view of directions of Hon ble ITAT, H Bench, Delhi, this is finding of the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed accordingly. 5. Dissatisfied with the order of CIT (A), the assessee filed appeal before this Tribunal. 6. At the outside, the ld. AR argued that the issue is covered in favour of assessee by Tribunal order dated 11th Feb. 2011 and took us to pages 203 to 211of paper book and invited our attention to the findings of Hon ble Tribunal. The ld. AR further submitted that Hon ble Tribunal had passed the judgment after considering various judgments of Hon ble Supreme Court and the only issue which was referred back by ITAT to CIT (A) was to record a finding as to whether or not notice u/s 143(2) was issued to the assessee. He further argued that though ld. CIT (A) in Para 2.2 on page 12 as stated that statutory notices u/s 143(2) of the IT Act was not served by the AO, yet going beyond his jurisdiction and relying upon the judgment the case of Madhya Bharat Energy Corp. Ltd. dismissed the appeal of the assessee. 7. The ld. AR further argued that the above said Delhi High Court case stands reviewed by Delhi High Court itself by its order dated 17th Aug. 2011 and secondly this issue was not before CIT (A) as Hon ble ITAT had already given a finding that 143(2) notice was mandator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case the Tribunal had remanded back the appeal filed to CIT (A) to just verify as to whether notice u/s 143(2) was issued or not. 11. We have heard the rival parties and gone through the material placed on record. We find that Hon ble Tribunal vide its order dated 11th Feb. 2011 had already adjudicated that issuance of notice u/s 143(2) was mandatory. The Hon ble Tribunal had remanded the file to the office of CIT (A) to record a finding of fact as to whether notice u/s 143(2) was issued or not. 12. The ld. CIT (A) has recorded a finding of fact in para 2.2 on page 12 wherein it has been mentioned that notice u/s 143(2) of the IT Act, was not issued. 13. We further observe that ld. CIT (A) has traveled beyond his jurisdiction and has held that though notice u/s 143(2) of the IT Act was not served by the AO during the course of assessment proceeding the action of AO making assessment u/s 143(3) read with Section 147 of IT Act was fully justified. 14. Section 292BB as inserted by Finance Act 2008 reads as under: 292BB where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment it shall be deemed that any n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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