TMI Blog2015 (10) TMI 1513X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) quashing the reassessment is quashed - Decided in favour of revenue. As held in the case of Phool Chand Bajrang Lal (1993 (7) TMI 1 - SUPREME Court), that sufficiency of reasons cannot be gone into by the court at the time of recording of reasons as it is the beginning of the process of reassessment. Assessee attitude was totally non-cooperative in compliance and the alleged discrepancy about information cannot be held to be fatal to the recording of the reasons. - Decided in favour of revenue. - ITA No. 83/Jp/2013, CO No.13/JP/2013 - - - Dated:- 26-6-2015 - R. P. Tolani, JM For the Appellant : Smt Neena Jeph, JCIT For the Respondent : Shri N K Shrimal, CA ORDER Per R P Tolani, JM This is an appeal filed by the Revenue against the order of the ld. CIT(A), Alwar dated 02-11-2012 for the assessment year 2003-04. The assessee has filed a C.O. Respective grounds are raised by both the parties as under:- Revenue's ground in ITA No. 83/JP/2013 Whether on the facts and in the circumstances of the case and in law the ld. CIT(A) was justified in quashing the assessment order passed u/s 147/144 holding that the notice u/s 148 was not validly serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alongwith copy of reasons. On 2-12-2010, the ld. AR of the assessee filed letters challenging the validity of the assessment proceedings. The AO disposed off all the objections by holding that as per record notice through speed post was served on the assessee by following observations. The notice u/s 148 was issued in the name of Ms. Shubashri Paniker, F-58, Kailash Marg, Bani Park, Jaipur on 22-03-2010 and sent for service through speed post on 22-03-2010. Inspection of the assessment record were made by your A/R on 30-11-2010 and this fact has also been verified by you A/R. The said notice was also not received back unserved. From the assessment record, it has also been noticed that a notice u/s 142(1) dated 4-10-2010, issued on the same address, fixing the hearing on 19-10-2010, which was sent for service through Speed Post, has duly been served on you and in response to which your A/R attended the hearing on 19-10-2010 and the case was adjourned to 29-10-2010. It shows that although in the notice the road name was mentioned as Kailash Marg, Bani Park, Jaipur instead of Kailidas Marg, Bani Park, Jaipur, the speed posts were served on the address as there is no road in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,000/- 3.2 Aggrieved, the assessee preferred first appeal challenging the validity of the assessment proceedings as well merits of the additions. The ld. CIT(A) considering the contentions of the assessee about nonservice of notice of u/s 148 quashed the assessment by following observations. I find that in the case of the appellant, the notice u/s 148 dated 22-03-2010 has not been sent on the other hand, the correct address of the assessee i.e. Ms. Shubashri Paniker, F58(B), Kaildas Marg, Bani Park, Jaipur and therefore, no valid presumption can arise under the law that the said notice had been duly served upon the assessee, since it had not been received back unserved. The proper service of notice u/s 148 is essential for the AO to assume jurisdiction u/s 147/148 of the Act and to make a valid assessment order. In the case of CIT vs. Yamu Industries Ltd., the Hon'ble Court has upheld the service of notice u/s 143(2) within the period of limitation since the notice had been correctly addressed to the assessee and sent by registered post in consonance with the requirement of Section 282(1) of the Act with order V Rule 19A of the CPC. In view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of CIT (A) should be upheld and appeal of Revenue should be dismissed. 3.4 Apropos C.O., it is submitted that the ld. CIT(A) ought to have decided the other issues about the correctness of reasons and its nexus with assessee's case. If the reasons are based on wrong assessment then they cannot make a correct foundation for belief. The reason to believe is merely 'some information' from investigation wing and there is no independent application of mind by Assessing Officer before re-opening the case. The Assessing Officer has not applied his independent mind which is evident from following. (i) The reason contents the word Some inquiries which implies even the fully inquiry was not completed and the Assessing Officer has accepted the fact as gospel truth without any further enquiry. (ii) The reason to believe is based on 'Bogus Entry Operator'. The full name, address, PAN and nature of transaction were not given in the information. (iii) The statement recorded by investigation cell is not formed part of reason. (iv) The nature of bogus entry is not explained fully whether it is loan, share transaction, share capital, purchase/ sales o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not served on the assessee then in second notice if the assessee appeared and did not raise any objection after 30 days of issuance of notice, then and it is a valid presumption under law that no notice is served. This fact is further corroborated by repeated appearance of AR of the assessee. Apropos reasons recorded for reopening, the impugned bogus entry was found in the books of the assessee; it has been held by the Hon'ble Apex Court in the case of Phool Chand Bajrang Lal And Another vs. ITO, 203 ITR 456 that it is not for the Court to judge the sufficiency of reasons recorded for forming the belief which is the initial stage of income escaping assessment. The AO had valid information in his possession which is placed on the record. It is pleaded that the ld. CIT(A) erred in holding that there is no service of notice and assumption of jurisdiction is invalid. 3.6 Ld. DR relied on the order of the Tribunal in the case of ITO vs. Shri Sarabh (Saurabh) Charan (ITA No.1119/JP/2011 dated 5-12-2014) holding as under:- 7. We have heard the rival contentions of both the parties and perused the material available on the record. By affixture notice was served on the given ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned CIT(A), therefore, we set aside the order of the learned CIT(A) and directed to frame the order as per law after providing reasonable opportunity of being heard to both the parties. The Hon'ble Delhi High Court decision in the case of M/s. Yamu Industries Ltd. (supra) is as under:- 15. So, the provisions of Section 282 of the Act with regard to the service of notice have been duly complied with by the Revenue. Since the notice u/s 143(2) of the Act sent by the registered post had not been received back [unserved] within thirty days of its issuance, so there would be presumption under the law that notice has been duly served upon the assessee. 16. In the instant case, since the notice has not been received back unserved within the period of thirty days of its issuance, under these circumstances, it has to be held that the notice has been duly served upon the assessee. 17. Accordingly, we hold that notice u/s 143(2) of the Act has been duly served upon the assessee within the period of limitation and this finding of the Tribunal that no notice u/s 143(2) of the Act has been served within the prescribed period is liable to be set aside. 18. As suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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