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TMI Blog2015 (7) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... -2K respectively and without verifying the issue register, postal stamp register maintained by the department, where the envelope containing the alleged notices was properly addressed and duly stamped and also without examining the process server and the note of mode of issue of notice in the order sheet maintained by the learned A/O in the case of the appellant. In the facts and circumstances of the case whole impugned order of the learned CIT(A) is perverse. 2. For that, the hon'ble Tribunal had, by its order dated 05.09.2008 restored the issue of service of notice u/s. 147/148 back to the file of the learned CIT(A) with the direction to also to verify whether there was another Smt. Chapala Kalita in Bisisthapur and also to make appropriate enquiry from the postal department to verify whether the specific notice was sent by registered post on 31.05.2001 to the assessee. Neither of these issues have been independently and properly enquired into by the authorities below and as such disposal of appeal and confirmation of ex parte assessment made accordingly on the basis of letter dated 31.01.2013 of the learned ITO, Ward 1(2) to the learned CIT(A) is wrong and unjustified and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entirety. 10. For that without prejudice to the above, the appellant begs to reiterate all the grounds on merits of additions as taken before the learned CIT(A) and also in the cross objection filed in the original appeal as below:- (a) For that, without prejudice to the submissions on the ground of non-service of notice u/s. 147/148 of the Act, it is submitted that in the facts and circumstances of the case, learned CIT(A) was wrong and unjustified in confirming the various additions and/or disallowances made by the learned Assessing Officer in its impugned order of Assessment without affording an opportunity of hearing to the appellant in the matter and without considering the written submissions submitted and lying in records of the case before the learned CIT(A). Dismissal of the appeal without considering the material available on the record and also without affording reasonable opportunity of the appellant in the matter is wrong and illegal and as such the impugned order and the disputed assessment is liable to be set aside/annulled in its entity. (b) For that the impugned order passed by the learned CIT(A) is wrong, unjustified and void in law as it has been passed withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14.3.2008. The said order was subject matter of departmental appeals before the Tribunal and the Tribunal vide its order dated 5.9.2008 passed the order in ITA Nos.135 to 139/Gau/2008 set aside the consolidated order dt. 14.3.2008 passed by the ld CIT(A) pertaining to the assessment years under consideration, observing as under: '6. We have heard the rival submissions and perused the various materials available on record. On a careful consideration of the same, we are of the view that in the peculiar facts and circumstances of the case, the impugned order deserves to be set aside as the facts on record are not established. It is seen that whereas before the CIT(A), the concerned Assessing Office took a specific stand that there was no initial to show service of notice. However, the revenue before the Tribunal has placed various documents to show that the stand taken by the Assessing Office before the CIT(A) was not borne out from records and in fact is grossly incorrect. However, on a perusal of the cross objections filed by the assessee and the argument is, we have seen that the assessee has challenged the genuineness of the postal receipt dated 31.3.01, which has been heavil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) shall after obtaining necessary report from the postal authorities shall decide the issue in accordance with law after giving the assessee a reasonable opportunity of being heard. Since the issue of legality has been restored back to the file of the CIT(A), the decision on merits for which the assessee has agitated in its Cross Objections is also directed to be taken in accordance with law. 7. In the result, the departmental appeals as well as the cross objections filed by the assessee are allowed for statistical purposes.' 5. In pursuance to the order of the Tribunal dated 5.9.2008, ld CIT(A), Guwahati passed a fresh consolidated order on 4.3.2013 and he has dismissed all the appeals filed by the assessee. 6. Now, the assessee has preferred these appeals against the consolidated order of ld CIT(A) dt.4.3.2013 before us. 7. We have heard the rival submissions. The main arguments of the assessee are stated in the grounds of appeal, referred to above. On the other hand, ld D.R. relied on the order of Id CIT(A) in support of the Revenue's case. 8. In this case, the main contention of ld counsel for the assessee is that the assessment orders passed by the AO are illega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Division, Guwahati has replied as under: "The parawise reply of your aforesaid RTI application is appended below: (i) The Xerox copy enclosed does not bear any number of article, moreover the case relates to 2001, as per rule, the records related to register articles are preserved only upto one and half year. So all records related to 2001 have been disposed off since long, so no information can be furnished now. It has already been intimated to you by our previous letter dt 17.4.2013. (ii) The copy supplied by you is a xerox copy without any number, without original receipt no identification can be made. (iii) If a article is presented in the counter with proper address and proper packing for registration by a customer, a receipt is issued with initial of the counter clerk and a date stamp impression of the booking office, -however now a days computer generated receipt is issued-as most of the urban pos are computerized. (iv) Already stated at para ii above. Para v to para vii -No comments. Enclosure The copy of the ruling related to preservation of records. Sd/- Sr. Superintendent of Post Office, CPIO Guwahati Division, Guwahati 781001" 9. In the instant case, even t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs relevant for the purpose. But the AO has categorically stated that acknowledgment slip or indication of service of notice under s. 148 is not available at this stage." The further finding of the Tribunal is as follows: "In the present case before us and on the basis of the remand report and the additional remand report, it is seen that the notice under s. 148 was issued by the ITO to the assessee under registered post. But the ITO has reported that no acknowledgement slip is available at this stage. From the photo-copies of the order sheet entries for the assessment years under considerations, it cannot be seen that there was any service of notice under s. 148 to the assessee for both the years." The further finding of the Tribunal is as follows: "That in the present case before us, we find that the notice under s. 148 was actually issued by the ITO for both the years and, therefore, the ITO had the jurisdiction to call for a return, account books, etc., for the purpose of reassessment proceedings. But as pointed out by the Supreme Court that the mandate of s. 148(1) is that reassessment order shall not be made until there has been service of such notice." 5. Sec. 148(1) is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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