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2015 (11) TMI 1198 - ITAT AHMEDABAD

2015 (11) TMI 1198 - ITAT AHMEDABAD - TMI - Reopening of assessment - invalid notice - whether for the year under consideration notice u/s 143(2) was served upon the assessee? - Held that:- Apart from the photocopy of the notice now placed before us, there is no evidence that any such notice was actually issued to the assessee. The notice claimed to have been served by affixture on the ground that on 18.11.2011 the assessee’s premises was closed and therefore, notice could not be served by notic .....

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t several notices and orders were issued from time to time and each and every notice/order have been duly served at the same premises. From the totality of these facts, we only say that the purported notice dated 18.11.2011 (photocopy of same is placed before us and claimed its service through affixture) lacks credence and cannot be relied upon. There is no contemporious evidence in support of this claim of the Revenue. On the other hand, all contemporious evidence supports the order of the CIT( .....

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ndra Singh, Sr. DR For The Assessee : Shri S.N. Soparkar, AR ORDER PER G.D. AGRAWAL, VICE PRESIDENT: These are the appeals filed by the Revenue and Cross-objections filed by the assessee against three separate orders of learned Commissioner of Income-tax (Appeals), Valsad, all dated 31.12.2012, passed in Assessment Years 2006-07, 2007-08 and 2008-09. Since these appeals and crossobjections involve common issues, these were heard together and are being disposed of by this consolidated order for t .....

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essment u/s 143(3) r.w.s. 147 r.w.s. 142(2A) of the Income-tax Act, 1961 on 19.06.2012. The CIT(A) quashed the assessment order on the ground that no notice u/s 143(2) was served upon the assessee. The relevant finding of the CIT(A) in this regard reads as under:- 7.2 DECISION : I have perused the assessment order and considered the submissions of the appellant carefully. To verify the factual position, the case records were called for from the assessing officer and perused the case records care .....

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ed - 28.08.2008 142(1) - 06.10.2008 - Hearing on 22.10.2008 - Received 06.10.2008 274 r.w.s. 271(1)(b)- 22.10.08- Hearing on 03.11.08- Received 22.10.08 142(1) - 22.10.08 - Hearing on 03.11.08 - Received 22.10.08 143(3) - 12.12.2008 served on 30.12.08 154 - 18.03.2009 served on 27.03.09 FRINGE BENEFIT FOR ASSTT. YEAR 2006-07 :- Return filed on - 1.12.2008 115WE(2) - 03.12.2007 Hearing 3.11.07 - Received 04.12.07 115 WH - 17.11.2008 - Received - 17.11.2008 115WG - 12.12.2008 RE-ASSESSMENT FOR ASS .....

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2 Draft order sent for approval of the JCIT, Vapi-18.06.12 Order passed by the ACIT, Vapi u/s. 143(3) r.w.s. 147 of the Act on 19.06.12. 4. From the above, it is evident that the CIT(A) himself has verified the assessment record and date-wise tabulated the issuance and service of notice upon the assessee. He also recorded at page No.17 of his order that it is seen from above that there was no proof of any such notice u/s 143(2) having been served upon the assessee. This fact is confirmed by the .....

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uced herein below. A.Y. Name of the Assessee Notice u/s 148 Notice u/s 143(2) 2006-07 Bhoomi Tractor Sales and Services Issued on 22.09.2010 and served by post on 23.09.2010 Issued on 18.11.2011 and served by way of affixture on 23.11.2011 2007-08 Bhoomi Tractor Sales and Services Issued on 22.09.2010 and served by post on 23.09.2010 Issued on 18.11.2011 and served by way of affixture on 23.11.2011 2008-09 Bhoomi Tractor Sales and Services Issued on 22.09.2010 and served by post on 23.09.2010 Is .....

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panchanama dated 23.11.2011 with regard to service of notice by affixture. He, therefore, submitted that since the notice u/s 143(2) was duly served, the CIT(A) was not justified in quashing the assessment order. He, therefore, submitted that the order of the CIT(A) on this point should be reversed and assessment order passed u/s 143(3) r.w.s. 147 r.w.s 143(2A) should be held to be valid. 7. The ld. Counsel for the assessee, on the other hand, referred to the assessment order and he stated that .....

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is available on record. The ld. Departmental Representative also denied mentioning of issuance of any notice u/s 143(2) in the order sheet. The ld. Counsel for the assessee has further referred to page 3 of the last paragraph of the assessment order and pointed out that the Assessing Officer has mentioned to the issuance of notice upon the assessee on 17.11.2011. This notice dated 17.11.2011 was duly served upon the assessee on 18.11.2011. This notice was u/s 142(1). He stated that when the Ass .....

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see. As per claim of the ld. Departmental Representative, on 18.11.2011 the assessee s premises was closed and therefore, notice was served through affixture. He stated that when the notice u/s 142(1) can be served on 18.11.2011, then obviously the claim of the Revenue, that for the purpose of service of notice u/s 143(2) the premises was closed, is false. He also stated that the substituted service of notice, i.e., the service by affixture can be resorted to only if the other normal mode of ser .....

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presentative has claimed that the Assessing Officer has not admitted before the CIT(A) that no notice u/s 143(2) was served. He stated that in the letter the Assessing Officer has mentioned that no evidence is available on file to suggest that the Assessing Officer ever confirmed that notices u/s 143(2) in the above case have not been issued/served. He submitted that the Assessing Officer appeared in person before the CIT(A) and during the course of discussion with him, the Assessing Officer mus .....

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fully considered the arguments of both the sides and perused the material placed before us. The only limited question before us is whether for the year under consideration notice u/s 143(2) was served upon the assessee. The CIT(A) has given the chronological details beginning with filing of the original return of income and all notices issued during the original assessment proceeding, during the assessment of fringe benefit and during the re-assessment proceedings. The CIT(A) has prepared this c .....

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he date of the order of the CIT(A) or till the date when the assessment records were produced before the CIT(A), the alleged notice claimed to have been issued u/s 143(2) on 18.11.2011 was not on record. Then, how come it subsequently surfaced. The ld. Departmental Representative tried to explain that there is a bulky assessment records and may be these notices might have been placed in some other files or might have escaped from the notice of the CIT(A). We are unable to agree with this submiss .....

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the order-sheet also there is no mention of the issuance of notice u/s 143(2) dated 18.11.2011. Thus, apart from the photocopy of the notice now placed before us, there is no evidence that any such notice was actually issued to the assessee. The notice claimed to have been served by affixture on the ground that on 18.11.2011 the assessee s premises was closed and therefore, notice could not be served by notice server. However, on perusal of the chronological events of the issuance and service o .....

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