TMI Blog2016 (6) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... ax-II Versus M/s. Salarpur Cold Storage (Pvt.) Ltd. [2014 (8) TMI 732 - ALLAHABAD HIGH COURT] - Decided in favour of assessee - ITA No. 1445/Del/2014 - - - Dated:- 16-6-2016 - Shri R. S. Syal, Accountant Member For the Assessee : Shri Akhilesh Kumar, Advocate For the Department : Shri V.R. Sonbhadra, Sr. DR ORDER This appeal by the assessee is directed against the order passed by the CIT(A) on 29.10.2013 in relation to the assessment year 2008-09. 2. The first two grounds are as under:- 1. Because, the learned Commissioner of Income Tax (Appeals) erred in not appreciating the fact that the notice u/s 143(2) of the IT Act, 1961 is never served upon the assessee and even neither assessee appeared nor co-operated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aged in the business of purchase and sale of gifts, etc., which was later on converted to precious metals alone. The assessee filed his return giving the address of Plot No.30, Dwarka Apartment, Shalimar Garden, Sahibabad, whereas no notice was ever served u/s 143(2) at the given address because the Department firstly issued the notice and then tried to serve it by affixture at a wrong address as indicated in the assessment order itself, namely, WZ-32, Chukhandi Post Office, Tilak Nagar, New Delhi. The ld. AR submitted that the assessee was residing at this address ten years ago. As no notice u/s 143(2) was served on the assessee, which was apparent from the fact that the assessment order has been passed u/s 144, it was prayed that the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration at the level of the ld. CIT(A). The Hon ble Supreme Court in NTPC vs. CIT (1998) 229 ITR 383 (SC), has held that a legal ground can be taken up for the first time provided no fresh investigation of facts is required. As the address at which notice was served u/s 143(2) has been given in the assessment order itself, and further, the correct address of the assessee is borne out from the copy of the return filed with the Department, in my considered opinion, no fresh probing of facts is necessary. I, therefore, admit these two grounds for adjudication. 6. On merits, it is noticed from the assessment order that notice u/s 143(2) was sent at the address WZ-32, Chukhandi Post Office, Tilak Nagar, New Delhi, which was served by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice was affixed at the wrong address, which was never served on the assessee, as a consequence of which assessment was completed u/s 144 of the Act. Since the jurisdictional condition for making assessment, namely, the issue of notice u/s 143(2) was not satisfied, in my considered opinion, no valid assessment cannot follow. Respectfully following the judgment of the Hon ble jurisdictional High Court in Salarpur Cold Storage Pvt. Ltd. (supra), I set aside the impugned order and declare the assessment to be invalid. 7. In view of the decision on the above legal ground, there is no need to deal with the merits of the addition. 8. In the result, the appeal is allowed. The order pronounced in the open court on 16.06.2016. - - Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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