TMI Blog2015 (12) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... is bad in law. The CIT(A) was also quite balanced and justified in drawing attention of CIT, Meerut to this serious issue. We are unable to see any reason to interfere with the impugned order and we uphold the same on this issue. - Decided against revenue Valid service of notice under section 143(2) - Held that:- When the Assessing Officer himself went wrong in holding valid service of notice and did not decide the legal objection of the assessee, the CIT(A) was quite balanced and justified in holding that the valid service of notice within time comes under serious doubt as the Assessing Officer has not brought out any fact on record to support valid service of notice on the assessee. Hence, we are unable to see any valid reason to inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t year 2006-07. Ground No. 1 2 of the revenue 2. Apropos ground no. 1, ld. DR submitted that the CIT(A) has erred in holding that the assessment order is bad in law as so called other order was merely an untenable and concocted story which is non-cognizable and had no legal sanctity. 3. Learned counsel of the assessee supported the impugned order and submitted that it was a very bad practice to substitute a new order in the place of earlier order which has been passed on the back of the assessee which was not only bad in law but void ab initio. 4. On careful consideration of the above, we note that the CIT(A) concluded the issue in favour of the assessee with following observations:- 4.3. Decisions and reason therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee in comparison to earlier order. We may point out that the conduct of the Assessing Officer was dignified and judicious and the CIT(A) rightly held that second order under appeal is bad in law. The CIT(A) was also quite balanced and justified in drawing attention of CIT, Meerut to this serious issue. We are unable to see any reason to interfere with the impugned order and we uphold the same on this issue. Ground no. 1 2 of the revenue are dismissed. Ground no. 3 of the revenue 6. We have heard arguments of both the sides and carefully perused the relevant material placed on record before us. Learned Departmental Representative replied that the earlier assessment order passed by the Assessing Officer on the same date wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as returned unserved as per the noting of the postal staff dated 28.9.2007 on the envelope. Yet another notice of the same date is found on record which is shown as served by affixture by an ITI on 28.9.2007 on the last known address. The same is denied by the AR. The AR has placed on record a copy of his petition dated 17.11.2008 duly received in the ITO s office wherein he has raised his objections that notice under section 143(2) was not served within 12 months and, hence, the assessment proceedings were bad in law. In the order under appeal, the AO has not dealt with this objection. He has only stated that notice was issued on 27.9.2007 and was duly served. In the order in which he has accepted the returned income, the A.O. has not ment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt of Delhi in the case of CIT vs Jubilant Securities Pvt. Ltd. 333 ITR 445 (Delhi) and judgment of Hon ble Gujarat High Court in the case of CIT vs Rewa Shankar A. Kothari 283 ITR 338 (Guj). 14. On careful consideration of the above rival submissions and dicta laid down by Hon ble High Court of Delhi in the case of CIT vs Jubilant Securities P. Ltd. (supra), firstly we observe that the first appellate authority granted relief to the assessee with following conclusion:- 6.4. Decision and reasons therefor : I have carefully considered the reasons discussed by the A.O. in the impugned order for assessing the gain on the sale of shares as profits and gain of business as against Capital gains claimed by the assessee. The A.O. h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht on record any material to show that the assessee valued the shares at the end of the previous year by following the principle of lower of the cost or market value and valuation loss, if any. I also note that the assessee had not claimed the Securities Transactions Tax (STT). Even though the A.O. treated the appellant to be dealer in shares, AO did not allow the rebate u/s 88 E of the Act . In this factual back ground, I find that when the assessee could get benefit of valuation loss or rebate u/s 88 E , the A.O. did not regard the appellant to be a dealer in shares. I find also that the assessee s conduct all through was uniform. The assessee accounted for the investments in his books at cost and no valuation loss was accounted for by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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