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Ramesh Kumar Gupta Versus ITO, Ward 29 (1) , New Delhi

2016 (3) TMI 278 - ITAT DELHI

Non service of notice u/s 143(2) - Held that:- Apparently, the notice was sent on the wrong address as the assessee has categorically given his address in the relevant return of income for the Assessment Year 2006-07, which was subjected to scrutiny, the issuance of notice in a mechanical manner does not mean that service of notice on the assessee has been effected. Presumption can only be raised against the assessee for service of notice u/s 143(2) when the notice was sent on the correct addres .....

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ithout service of such a notice is invalid. So, when the assessee has categorically proved that the change of address has already been intimated to the Revenue by incorporating the same in the relevant return of income for the Assessment Year 2006-07, the assessment order due to non service of notice u/s 143(2), is not sustainable. Assessment order passed in this case by the Assessing Officer without getting service of notice on the assessee on his new address duly intimated to the revenue is no .....

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he impugned order dated 15.12.2010 passed by Ld. CIT(A) XXV, New Delhi qua the Assessment Year 2006-07 on the grounds inter alia that: 1. That the learned CIT(A)-XXV, New Delhi has erred, both of facts and in law in confirming the order of the Assessing Officer Ward 29(1) New Delhi. 2. That the learned CIT (A) has record, the cases cited and principles of natural justice. 3. That on facts and in the circumstances of the case & in law the learned CIT (A) failed to consider the ground of prope .....

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sallowance of ₹ 58,442/- under the head telephone, business promotion and car maintenance that the assessee has not brought any material or satisfactory explanation. (b)In regard to service to notice stating and assuming that the notice issued by the Assessing Officer was never returned back unserved to the Assessing Officer. (c)In regard to service to notice stating that change of address in PAN card has not been done by the assessee whereas the same were also filed before CIT (A). (d) In .....

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riefly stated, the facts of this case are: during the processing of return of income filed by the assessee qua the Assessment Year 2006-07, the case was subjected to scrutiny and consequent upon notice issued u/s 143(2) of the Act, Shri Atul Gupta CA/AR attended the proceedings and filed documents and discussed the case. The assessee is into the business of trading and commission agent in food grains, under the name and style of M/s. Makhan Lal Ramesh Kumar. The Assessing Officer disallowed S .....

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he party M/s. Amar Sales Corporation was week but failed to furnish any supporting evidence. Assessee, vide letter dated 17.12.2008 also claimed that the notice u/s 143(2) of the Act was not served upon the assessee in time and at the correct address, which has not been accepted by the Assessing Officer on the ground that the case was selected for scrutiny through computer and notice was generated as per the computerized address furnished by the assessee in Form 49A, so, treated the notice sent .....

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e case. 6. Ld. A.R. for the assessee, challenging the impugned order, vehemently contended that since notice u/s 143(2) has never been served upon the assessee, the said assessment order stands vitiated. Since Ld. A.R. for the assessee contended that his main ground against the Revenue is non service of notice upon the assessee u/s 143(2) of the Act, the only question arises for determination first in this case is, as to whether the Assessing Officer has not provided the opportunity of being hea .....

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d. Notice u/s 143(2) implies mandatory duty of the Assessing Officer to get the notice served upon the assessee before proceeding for assessment. Now, adverting to the case at hand, assessment record was summoned and perused in the open court and the assessee has submitted a letter dated 25.04.2008 to the Assessing Officer categorically raising the question that the notice dated 16.04.2008 has never been served upon him and as such it is not possible to prepare the case. Perusal of the return of .....

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ice. Even otherwise it is not the case of Revenue that the notice in question was served upon the assessee. 9. Ld. CIT(A) has declined the contention of the assessee on the ground that since the notice was issued on the computer generated address given by the assessee in form 49A, the issuance of notice through registered posts on 24.07.2007 is a valid service. 10. However, we are of the considered view that when apparently, the notice was sent on the wrong address as the assessee has categorica .....

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