TMI Blog2017 (12) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, the exparte assessment order is void ab initio for want of mandatory service of jurisdictional notice u/s. 143(2) of the I.T. Act, 1961 and hence, not sustainable in the eyes of law, in view of the decision of the Hon’ble Supreme Court of India in the case of ACIT & Anr. Vs. Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT OF INDIA] wherein the Hon’ble Supreme Court has held that the issue of notice u/s. 143(2) of the I.T. Act is mandatory and not procedural. - Decided in favour of assessee. - I.T.A.No.2363/Del/2014 - - - Dated:- 4-12-2017 - SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER For The Assessee : Sh. Kapil Goel, Adv. For The Department : S h. S.S. Rana, CIT(DR) ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and in the circumstances of the case and in law, Ld. CIT(A) in sustaining the addition of ₹ 40,00,000/- which is sufficiently explained being received from duly identified Sh. Har Prakash who has handsome creditworthiness as demonstrated from his bank statement and genuineness is proved by agreement to sell. 6. That on the facts and in the circumstances of the case and in law, Ld. CIT(A) erred in sustaining the balance addition of ₹ 20,29,500/- being cash withdrawn and re-deposited which is proved by fund flow statement. That the appellant craves leave to add, to, amend, modify, rescind, supplement or alter any of the grounds stated hereinabove, either before or at the time of hearing of this appeal. 2. The fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served that from the non-cooperative attitude of the assessee, it can be concluded that the assessee has no explanation and evidence in regard to the information / documents as called for vide questionnaire and final show cause notice. Under these circumstances, the AO was left with no alternative but to finalise the assessment exparte u/s. 144 of the Income Tax Act, 1961 on the basis of best judgment and on the basis of material available on record at the income of ₹ 3,97,36,900/- by making addition of ₹ 60,29,500/- and ₹ 3,34,49,264/- vide order dated 09.12.2011. 3. Aggrieved with the aforesaid order dated 09.12.2011, assessee filed the Appeal before the Ld. CIT(A), who impugned order dated 14.02.2014 has partly allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order on the basis of the records and as per the provisions of law, therefore, the impugned order may be upheld by dismissing the Appeal filed by the Assessee. 7. We have heard both the parties and perused the relevant records especially the order passed by the Revenue Authorities alongwith the documentary evidence filed by the assessee supporting the claim of the assessee as well as the aforesaid decision rendered by the Hon ble Supreme Court of India on the legal issue in dispute. No doubt assessee has raised so many grounds of appeal in which the assessee challenged the non-service of the notice u/s. 143(2) of the Act and also merits of the case. Assessee has also challenged the addition in dispute on merit also by producing various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very of demand was served on her. Accordingly, the appellant applied for a copy of order and demand notice, which was served on her on 22.06.2012 against which the appeal was filed on 25.06.2012. The AO has submitted that at least 3 opportunities were given to the appellant followed by a show cause notice which remained un-complied with, as a result of which he has left with no alternative but to pass order u/s 144 of the Income Tax Act. However, the AO has not commented upon the fact that the appellant could not get notice u/s 143(2)/142(1) of the Income Tax Act because of which there was no compliance on her part and additions were made in the order u/s 144 of the Income Tax Act. Rule 46A lists 4 circumstances under which the additional e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Secondly, the Ld. CIT(A) has also mentioned in para no. 3.4 as reproduced above, that the Appellant could not get notice u/s. 143(2)/142(1) of the I.T. Act, because there was no compliance by the Assessee and addition were made in the order u/s. 144 of the Act meaning thereby that Ld. CIT(A) himself admitted that no notice u/s. 143(2)/142(1) of the I.T. Act has been served upon the assessee and the AO completed the assessment by making the addition in dispute in the case of the assessee and the Ld. CIT(A) has upheld the order of the AO without appreciating the non-service of notice to the Assessee u/s. 143(2) of the I.T. Act. Under the circumstances, the exparte assessment order is void ab initio for want of mandatory service of juris ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
