TMI Blog2017 (2) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... e has filed the present appeal against the impugned order dated 09/1/2015 passed by the Ld. Commissioner of Income Tax (Appeals)-19, New Delhi on the following grounds:- 1. That the Ld. CIT(A) has erred in law and on facts in sustaining a disallowance of ₹ 11,47,123/- as against an addition of ₹ 16,58,000/- on account of alleged unexplained income under section 69A of the Act. 1.1 That in doing so, the Ld. CIT(A) has ignored the basic fact that the cash deposited in bank account amounting to ₹ 16,58,000/- was duly explained to the Ld. CIT(A), which explanation has been arbitrarily rejected and that too on assumptions, presumptions, surmises and conjectures and hence the addition so sustained is unsustainable and liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeping in view of the decision of the Hon ble Supreme Court of India in the case of NTPC 229 ITR 383 (SC) (Supra), the additional ground raised by the assessee may be admitted and decided first. 4. On the contrary, Ld. DR strongly opposed the admission of additional ground (legal) raised by the assessee. 5. After hearing both the parties as well as perusing the additional ground alongwith the orders passed by the Revenue Authorities, I am of the considered view that in view of the decision of the Hon ble Supreme Court of India in the case of NTPC Limited 229 ITR 383 (Supra), the additional ground raised by the assessee vide its Application dated 6.9.2016 is purely legal ground and did not require fresh facts which is to be investigate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proceedings initiated are illegal, unsustainable and untenable under the law and needs to be quashed. 10. On the other hand, Ld. DR relied upon the order passed by the revenue authorities and opposed the request of the ld. Counsel of the assessee. 11. I have heard both the parties and perused the relevant records especially the order passed by the Revenue Authorities. I find considerable cogency in the assessee s counsel submissions that the assessment order dated 26.12.2008 passed by the assessing officer is without jurisdiction and void-ab-initio and is liable to be quashed, as no notice under section 143(2) of the Act was issued and served on assessee. Therefore, the assessment proceedings initiated are illegal, unsustainable and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2BB of the Act? Held: In this case, Hon'ble High Court has held that section 292BB cures the defects in service of notice but section 292BB is 'confined to only service of notice under this Act and this section does not apply to 'Issuance of notice' under the provisions of Act. It does not lay down that if a mandatory notice is required to be issued by the assessing officer and it has not been issued within the period of limitation fixed under the law, then such notice shall be deemed to have been issued within time. It has been further held that resort cannot be taken by the Revenue to section 292BH to give a go-bye to mandatory requirement of issuance of notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilure on the part of the Revenue from complying with the procedure laid down under Section 143(2) of the Act, which is mandatory one as held by the Apex Court. Alpine Electronics Asia Pte Ltd. vs. DGIT Ors: [(2012) 341 ITR 247 (Del) Held: The service of notice u/s 143(2) within the statutory time limit is mandatory and is not an inconsequential procedural requirement. Omission to issue notice u/s 143 (2) is not curable and the requirement cannot be dispensed with. S. 143(2) is applicable to proceedings u/s 147 148. JYOTI PAT RAM VS. ITO [(2005) 92 ITD 423 (Lucknow) - ShreeJai Shiv Shonhor Traders (P) Ltd. - A.Y. - 2008-09 Reassessment order passed under section 143(3)/148 without issue of a valid notice under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee prior to the assessee cannot be ignored as an invalid return, prima facie, appears to be merited. However, in the facts of the present case, the said question does not arise as the AO had issued a notice under section 142(1) of the Act on 30th November, 2011, inter alia, calling upon the assessee to file its return. Further, on 10th December, 2007, the AO was informed that the Assessee was in the process of filing its reutnr and an adjournment was requested. The AO had acceded to his request, which would be wholly unnecessary if the AO was of the view that a belated return would be invalid. Thus, in the facts of the present case, the returns filed by the assessee could not be ignored by the AO. 12. In the background of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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