TMI Blog2017 (5) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act became final after the judgment of the Hon’ble High Court of Bombay wherein it had upheld the order of the Tribunal wherein the revisionary proceedings, initiated by the CIT, u/s. 263 of the Act, were set aside. As a result, the claim made by the assessee for carry forward and set off of unobserved loss/ depreciation had to be allowed. Thus, the AO had wrongly held that no depreciation was available in the AY. 2003-04, that the unabsorbed loss/depreciation was being carried forward from the earlier years. Thus order passed by the FAA has to be reversed. - Decided in favour of assessee. - I. T. A. /1596/Mum/2013 - - - Dated:- 19-4-2017 - Shri Rajendra, Accountant Member and Ram Lal Negi, Judicial Member Revenue by : Shri Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akes. Accordingly, he revised the total income the assessee as under: i. Total income as per order dated 20/05/2010 giving effect to the order of the FAA- ₹ 4. 39 crores ii. Add: withdrawal of loss of AY. 2003-04 ₹ 1. 67 crores iii. Revised Total Income ₹ 6. 07 crores. 2. 1. Aggrieved by the rectification order of the AO, the assessee preferred an appeal before the FAA. Before him it was argued that order passed by the AO was illegal, bad in law and contrary to the provisions of the Act, that the assessee had not received any notice u/s. 154, that he wrongly mentioned the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... During the course of hearing before us, the Authorised Representative stated that assessee did not receive any notice alleged to have been issued on 07/09/2011 and it was not duly served on the assessee by postal authorities, that assessee had submitted a letter, dated 10/02/2012, to the AO and had requested him to supply it a copy of the notice as well as the postal acknowledgement, that it did not receive any response from the AO, that the office of the AO provided a printout of the notice to its representative, that no evidence of postal acknowledgement was made available, that the presumption of the AO that the assessee had no objection to the proposed rectification was not true, that sub-section 3 of section 154 of the Act stipulated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restored, that the departmental authorities have passed the rectification order/confirmed the order on the basis of erroneous facts. The Departmental Representative supported the order of the FAA. 5. We have heard the rival submissions and perused the material before us. We find the AO had passed rectification order in pursuance of the order of the FAA. We find that specific ground was raised by the assessee before the FAA about non-service of rectification notice. Neither the AO in his remand report nor the FAA has given any categorical finding of fact about the service of notice issued u/s. 154 of the Act. Service of notice is the first prerequisites for passing a rectification order. In our opinion, issuance of notice or handing over ..... X X X X Extracts X X X X X X X X Extracts X X X X
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