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2015 (6) TMI 354 - ITAT DELHI

2015 (6) TMI 354 - ITAT DELHI - TMI - Reopening of assessment - validity of notice - Held that:- First Appellate Authority has passed a well reasoned order by stating that the AO has not been able to substantiate the fact that the notice u/s. 148 of the I.T. Act, 1961 for the Asstt. year uder consideration was served upon the assessee company at any time before completing the assessment. Accordingly, he rightly held that the proceedings u/s. 147/148 of the Act, 1961 are held to be not sustainabl .....

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ed 10/8/2011 passed by the Ld. Commissioner of Income Tax (Appeals)-VIII, New Delhi for the asstt. year 2003-04 on the following grounds:- 1. The order of the Ld. CIT(A) is erroneous and contrary to facts and law. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) erred holding that no notice u/s. 148 of the Act was served upon the assessee at any time before the completion of assessment. 3. The CIT(A) therefore, erred in cancelling the assessment holding that the proceeding u/ .....

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essee through the Registry as well as through the Departmental Representative office on the address given by the assessee, however, again today i.e. 10.3.2015 none appeared on behalf of the assessee nor any request for adjournment is filed. In view of the above, we are of the considered opinion that no useful purpose would be served to adjourn the case again and again. Therefore, we are deciding the Appeal, exparte qua assessee, after hearing the Ld. DR and perusing the records available on reco .....

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nder:- 3.3 In the course of appellate proceedings, the Ld. Counsel for the appellant company has vehemently argued and submitted that the Ld. AO did not issue and effect service of any valid notice u/s. 148 of the I.T. Act, 1961 within the prescribed period of 6 years from the end of the relevant AY i.e. 31.3.2010. It is therefore, argued that the proceedings initiated u/s. 147/148 are not sustainable in law. In order to submit the relevant facts, the Ld. Counsel for the appellant company has ma .....

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assessee or any of its director at its address 8931/1, Multani Dhanda, Paharganj, Delhi ever till date. In this regards, in terms of trite law it is held. It is well-settled that issuance of notice u/s 148 is condition precedent for framing the assessment order u/s 147. It is equally well-settled that if no such notice is issued or notice issued is invalid or not in accordance with law of notice is not served on the proper person, then assessment framed would. be illegal. Therefore, Tribunal had .....

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r past three years ending 31.03.09, 31.03.2008 and 31.03.07 are available in paper book. It may be appreciated that return of income filed includes returns submitted electronically prior to 26.03.2010 conveying that the data of the company in IT Deptt. database is updated with correct name & address); 2. That assessee company has been regularly receiving notices and other communications prior to 26.03.2010 in terms of section 282 of IT Act, 1961 at address 8931/1, Multani Dhanda, Paharganj, .....

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ng assessment u/s 148 for AY 2003-04 was served either by post or affixture at the address 8931/1, Multani Dhanda, Paharganj, Delhi and assessee company makes a categorical denial; 5. That assessment order u/s 148/144 duly addressed at address 8931/1, Multani Dhanda, Paharganj, Delhi was the first communication received from the Id. AO by assessee company regarding assessment proceedings u/s. 148 for the AY 2003-04; 6. That regarding Id. AO claim that notice u/s 143 and 142 dated 03.12.2010 were .....

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s regards reliance is placed on the following judgment of jurisdictional Delhi High Court as gist reproduced hereunder: Whether where assessee entered into appearance, after receiving notices under sections 142(1) and 143(2) and categorically denied receipt of notice under section 148, argument of revenue that his appearance was in response to notice under section 148 did not advance case of revenue that notice under section 148 was actually served upon assessee - Rajesh Kumar Sharma 3111TR 235 .....

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d; 8. As regards, the claim of Id. AD that notices u/s 148 dated 26.03.2010 was issued by speed post and affixture while assessee makes a categorical denial of any knowledge of notice u/s 148 dated 26.03.2010 addressed to valid address at 8931/1, Multani Dhanda, Paharganj, Delhi issued/served either by post or affixture it is brought to kind knowledge that in terms of provisions of section 282 service by affixture is only alternative mode and can be made only after assessee refuses to receive or .....

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rs from the end of the relevant AY. As per the AO, the notice u/s 148 of the IT Act, 1961 was issued on 26.03.2010 and was sent for service by speed post. He also states that service of the notice was also made by affixture on the available address at E-18, Model Town- Ill, Delhi and at 8931/1 Multani Dhanda, Paharganj, New Delhi. However, the appellant company is challenging the service of the notice u/s 148 of the Act. The case of the appellant company is that it has been operating from the pr .....

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al registered post and there has been no occasion for the department to effect service by affixture. Therefore, it is argued that either no notice u/s 148 of the IT Act, 1961 was issued for the AY under consideration or the same was not served upon the appellant company till the date of completion of assessment. In support of the aforesaid, the appellant company has arranged to file an affidavit duly sworn by Sh. Varun Gupta, the director of the appellant company. In the said affidavit, Sh. Gupt .....

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the name of his wife is Mrs. Megha Gupta and there is no person in his family named Manju Gupta. In view of the aforesaid, it is deposed by Sh. Varun Gupta that no notice under sections 148, 143(2) and 142(1) of the IT Act, 1961 was received by the appellant company for the AY under consideration till the date of completion of assessment in question . 4.1 In order to find out the correct factual position, the verification from the relevant assessment records was necessary and therefore, the sam .....

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