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Smt. Sarita devi, C/o Kapil Goel Versus Income Tax Officer, Ward 1 (1) , Gurgaon

2017 (12) TMI 249 - ITAT DELHI

Validity of assessment - non-issuance of notice u/s. 143(2) - Held that:- 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 u .....

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reme 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 PER H.S. SIDHU, JM The Assessee has filed the present appeal against the impugned order dated 14/02/2014 passed by the Ld. Commissioner of Income Tax (A .....

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aw, the impugned exparte assessment framed by AO is void ab inito for which straight prayer is made to call for case records from the office of AO. Addition of ₹ 60,29,000/- wrongly sustained by CIT(A) on merits. 3. That on the facts and in the circumstances of the case and in law, Ld. CIT(A) erred in sustaining the addition of ₹ 60,29,000/- on basis of perverse findings and irrelevant grounds and ignoring assessee s pleadings. 4. That on the facts and in the circumstances of the cas .....

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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 CIT(A) erred in sustaining the balance addition of ₹ 20,29,500/- being cash withdrawn and re-deposited which is proved by fund flow statement.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 .....

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-2010 and duly served. Thereafter, the case transferred to the ITO, Ward 1(1), Gurgaon as the jurisdiction over the case lies with him. Accordingly, notice u/s 143(2) and 142(1) of the Income Tax Act, 1961 alongwtth detailed questionnaire were issued on 8.6.2011 and case was fixed for hearing on 22.6.2011 and duly served. Thereafter, various opportunities were allowed to the assessee by issuing notices under section 143(2) and 142(1) of I.T. Act, however, the assessee has not made any compliance .....

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formation/ documents. AO further observed 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 inco .....

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he issue involved in ground no. 1 relating to service of jurisdictional notice u/s. 143(2) before exparte assessment framed u/s. 144 of the I.T. Act, 1961. He stated that no notice u/s. 143(2) of the I.T. Act, 1961 was served upon the assessee, as a result of which critical evidence pertaining to the additions made by the AO could not be submitted during the assessment proceedings. He further stated that Ld. CIT(A) in his order at page no. 6 & 7 vided para no. 3.4 has held that the AO has no .....

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C) 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. 6. On the contrary, Ld. DR relied upon the order passed by the Ld. CIT(A) and stated that the Ld. First Appellate Authority has passed a well reasoned 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 relevan .....

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it also by producing various documentary evidence supporting its claim before the Revenue Authority as well as before us, but he argued only on the legal issue raised in ground no. 1. Keeping in view of the facts and circumstances of the present case and the arguments advanced by the Ld. AR of the assessee, we are of the view that the legal issue raised in ground No. 1 regarding the non-issuance of notice u/s. 143(2) of the I.T. Act, which goes to the root of the matter, can be taken up first an .....

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on her, as a result of which critical evidence pertaining to the additions made by the AO could not be submitted during the assessment proceedings. Since, critical evidence having significant ramification in so far as this case is concerned, could not be filed and no compliance made during the assessment proceedings, the AO was left with no option but to pass the order u/s 144 of the Income Tax Act. It has been submitted by the appellant that she could know about the assessment only on 18.04.20 .....

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d 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 evidence shall be admitted at the appellate stage: a) Where the Assessing Officer has refused to admit evidence which ought to have been admitted; or b) Where the appellant was prevented by sufficient cause from producing the .....

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ntioned in Rule 46A, I hold that the appellant's case is covered by Rule 46A(1)(b) and (c) of the Income Tax Rules. Hence, considering the facts of the case, particularly, the non-service of notices u/s. 143(2)/142(1), the amount involved and in the interest of justice and fair play, the additional evidence filed by the appellant during the course of appellate proceedings is hereby admitted. 7.2 After perusing the aforesaid findings of the Ld. CIT(A), we are of the considered view that Ld. C .....

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