TMI Blog2012 (3) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... <![endif]--><!--[if gte mso 9]> <![endif]--><!--[if gte mso 10]> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0cm 5.4pt 0cm 5.4pt; mso-para-margin-top:0cm; mso-para-margin-right:0cm; mso-para-margin-bottom:10.0pt; mso-para-margin-left:0cm; line-height:115%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri","sans-serif"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear data for comparable companies while determining arm s length price. 5.2. That the Ld. TPO erred in using data as at the time of assessment proceedings, instead of that available as on the date of preparing the TP documentation for comparable companies while determining arm s length price. 5.3. That ld. TPO erred in rejecting companies similar to the assessee in functions, asset base and risk profile while performing comparability analysis. 5.4. That the Ld. TPO erred in cherry picking and selecting companies with high profit margin during the financial year 2005-06 in order to determine the ALP of the international transactions of the assessee. 5.5. That the TPO erred in not considering the consolidated financials for computing the operating profit margins of Helios and Matheson Information Tech Ltd. 5.6. That the TPO erred in disregarding the fresh search conducted by the assessee and additional companies identified therein, defying the principles of natural justice. 5.7. That TPO erred in denying appropriate adjustment towards the working capital difference between the assessee and the entrepreneurial companies selected as comparable in determination of arm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue s arguments in the matter of ground No.7.3. of the Captioned appeal summarising that the ground relating to alleged nonservice of notice under Section 143(2) of the Income-tax Act, 1961 ( the Act ) is to be dismissed for the following reasons: i. Firstly, there is a valid presumption of service of notice; ii. Secondly, mistakes, if any, are curable in terms of Section 292BB of the Act; and iii) Thirdly, the actions of the assessing Officer and the assessee show that the requirements of Section 143(2) of the Act are complied with to all intents and purposes. 5. The Assessee s counsel in his written submissions filed in reply to the written submission filed by the department submitted its objection to the presumption of with respect to service of notice s follows: . Objections were raised regarding the validity of the assessment proceedings before the Learned Assessing Office ( ld AO ) vide letter dated 05-11-2008 and 27-10- 2009 as the notice was not received by the assessee. The validity of the proceedings was contested by the appellant at every stage of the assessment and the ld AO did not take any action in this regard to show the Appellant that the alleged n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... til almost one year passed, which clearly demonstrates that the notice dated 22-11- 2007 was never served which led the Hon ble Bench to issue a direction to the department to produce some evidence of service of the said notice dated 22-11-2007 . 9. Further, it was submitted that the onus was placed on the department to prove that the notice was served on time. The Department placed on record a copy of the Speed Post booking List for 22-11-2007, and submitted that this evidence established the fact that the notice was irretrievably put beyond the ld AO as on 23-11-2007. However, this document does not prove beyond doubt that notice was served by the ld AO within the due date. Hence, the Hon ble Bench again directed the department to produce a certificate from the postal authorities that the notice has been despatched/ served on the addressee. 10. In this regard, a letter from the postal authorities in New Delhi was filed, wherein it was intimated that the relevant records are unavailable and have been weeded out vide the postal department rules. This response received from the postal authorities is not in any way a conclusive proof that the notice was despatched/ served on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to establish the fact that the notice has in fact been served on the assessee. 15 With respect to the case of CIT Vs. Shanker Lal Ved Prakash (300 ITR 243), the assessee in its written submission pointed out that the facts are different as the assessee had not received the notice 22.11.2007. The company had filed its objection before the AO at the time of the assessment proceedings itself that the notice was not served on the assessee. 16. The learned counsel argued that notice u/s 143(2) is mandatory requirement for completing an assessment u/s 143(3) since the assessment was completed without service of notice u/s 143(2) the assessment is invalid. 17. The following case law was relied upon in this context: 1. CIT Vs. Cebon India Ltd. 229 CTR 188(P H) 2. CIT Vs. Eqbal Singh Sindhana, 304 ITR 177 (Del.) 3. BHPE Kinhill Joint Venture Vs. ADIT 116 ITD 123 4. Shubham Enterprises Vs. ITO (3 SOT 250) (all) 5. Nulon India Ltd. Vs ITO (323 ITR 681) (Del.) 18. In para 6 of the submissions filed by the department, without prejudice to the above arguments of the department reliance was placed on the amended provisions of section 292BB of the Act, which provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gement of the Special Bench of ITAT Delhi in the case of Kuber Tabocco Products P Ltd. Vs DCIT (2009) 310 ITR 300 (T.Del.) wherein it was held that section 292 BB is applicable to assessment year 2008-09 and subsequent years. 24. In the case of Kuber Tobacco Products P Ltd. it was held that section 292BB has no retrospective effect and is to be construed prospectively. Prior to 1.4.2008 i.e. upto 31.3.2008, as per section 292BB the assessee is not precluded from taking any objection regarding invalidity of assessment / reassessment on the ground of improper/invalid issuance/service of notice. Hence, it was concluded that section 292BB is applicable to assessment year 2008-09 and subsequent assessment years. 25. It was submitted that ample time was provided to the department for submission of proof that the impugned notice dated 22.11.2007 was despatched in the period between 23.11.2007 and 30.11.2007. No such proof was submitted by the department to prove that the impugned notice was indeed served on the assessee. The fact that no new hearing was fixed after the date of hearing fixed by the alleged notice further established that the notice was not served. 26. We heard bot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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