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Shri Rakesh Kumar Gupta Versus The Income Tax Officer, Ward-27 (3) , New Delhi

2017 (11) TMI 445 - ITAT DELHI

Non service of notice u/s 143(2) upon assessee within the period of limitation - validity of assessment - Held that:- Revenue failed to produce any evidence of service of the notice under section 143(2) of the I.T. Act upon assessee within the period of limitation. Therefore, the assessment order so passed is without jurisdiction and void abinitio and is liable to be quashed. - Decided in favour of assessee. - ITA.No.359/Del./2017 - Dated:- 6-11-2017 - SHRI BHAVNESH SAINI, JUDICIAL MEMBER For Th .....

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e Tower, South City, Gurgaon. The learned A.O. as well as CIT(A) has not looked into the documentary evidence filed by the assesse during the course of proceedings. 2. That the learned Commissioner of Income Tax (Appeals) has erred both in law and on facts in confirming the enhancement of profit shown at ₹ 1,58,879/- to ₹ 10,25,000/- on estimated basis on sales of ₹ 1,28,14,983/- by taking the rate of profit @ 8% of the sales. The learned A.O. had made the addition at the rate .....

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iled during the course of proceedings. 1.1. On earlier date when appeal was taken-up for hearing, assessee filed additional ground of appeal challenging the assessment order dated 29th March, 2014 passed by the A.O. 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 within the time prescribed under the Act. On 29th August, 2017, the SMC Bench considering the additional ground of appeal noted that the additional .....

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September, 2012. This notice was sent through speed post. Detailed questionnaire were issued to the assessee on 09th January, 2013. Subsequently, various notices were issued under section 143(2)/142(1) from time to time. But, according to A.O, the assessee has avoided all the notices and did not file any reply. The A.O. ultimately, computed the income of assessee at ₹ 28,99,990 by making the additions of ₹ 11,22,619, ₹ 8 lakhs and ₹ 8,18,495. The appeal of assessee was p .....

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rned Counsel for the Assessee submitted that no notice under section 143(2) have been served upon the assessee. Therefore, assessment is bad in law and is liable to be quashed. Learned Counsel for the Assessee pointed out that assessment in this case has been framed at the address at 434, Meera Bagh, New Delhi. Intimation under section 143(1) for assessment year under appeal i.e., 2011-2012 have been issued at 13/1/4, Emilia Vatika City, Sector-49, Gurgaon, Haryana-122018 (paper book-1). He has .....

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nd not merely issuance of notice and relied upon the decision in the case of ACIT vs. Hotel Blue Moon 321 ITR 362. He has also relied upon the decision of the Hon ble Delhi High Court in the case of CIT vs. Chetan Gupta 382 ITR 613 in which it was held that burden is on the Revenue to establish the service of notice and no material has been brought forward in the impugned matter to suggest the service of the notice under section 143(2) of the I.T. Act. 4. On the other hand, the Ld. D.R. filed th .....

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the address given in the return and same had not been returned back, it would be presumed that it had reached the assessee and duly served upon the assessee within the period of limitation. The Ld. D.R. therefore, submitted that additional ground may be dismissed. 5. I have considered the rival contentions. The assessee filed return of income on 30th September, 2011. Therefore, according to proviso to Section 143(2) of the I.T. Act as relevant to assessment year under appeal, no notice under th .....

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ven as 13/1/4, Emilia Vatika City, Sector-49, Gurgaon, Haryana-122018. The assessment order, however, is passed at the address of assessee at 434, Meera Bagh, New Delhi. The Ld. D.R. also filed address of the assessee as per PAN data base i.e., at 295, V & PO-Kapashera, New Delhi and as per the return, the address of the assessee is 290, V & PO- Kapashera, New Delhi. The A.O. in the assessment order has mentioned that notice dated 07th September, 2012 have been issued to the assessee fix .....

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2012. The A.O. thereafter, recorded order sheet on 24th September, 2012 and on that date A.O. issued notice under section 143(2) to the assessee at the another address of assessee at Sohna Road, Gurgaon and fixed the case for compliance on 28th September, 2013. Thereafter, no order sheet on 28th September, 2013 have been recorded. Thereafter, A.O. straightaway recorded the order sheet on 26th August, 2013 issuing notice under section 143(2) and 142(1) for 11th September, 2013 and notices under s .....

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ice dated 07th September, 2012 have been issued at the address at 290, V & PO- Kapashera, New Delhi and if the said notice have been served upon the assessee in the ordinary course of business, there was no necessity for the A.O. to issue further notice under section 143(2) on 24th September, 2012 at the address at Sohna Road, Gurgaon. These facts clearly prove that the notice under section 143(2) dated 07th September, 2012 and 24th September, 2012 have not been served upon the assessee and .....

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