TMI Blog2019 (2) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... dering the facts of the case and the relevant case laws on the subject, thus constrained to hold that the assessment under section 153A(1)(b) read with section 143(3) of the Act is void ah initio. Requirement of issuance of notice under section 143 (2) within period of limitation - Jurisdiction to pass the assessment order u/s 143(3) vide notice u/s 143(2) - the first notice u/s 143(2) was not issued within the time period as per section 143(2) - Held that:- Limitation for issuance of notice under section 143 (2) has to be reckoned from date of filing of original return of income, for year under consideration being 21/09/11 and notice under section 143 (2) has been issued on 06/03/13, which is beyond limitation period. There are plethora of decisions by Hon’ble Supreme Court in case of ACIT vs Hotel blue Moon [2010 (2) TMI 1 - SUPREME COURT OF INDIA] which opines settled legal position that, requirement of issuance of notice under section 143 (2) within period of limitation is mandatory for completing assessment under section 143(3) of the Act. - Decided in favour of assessee - ITA No. 2395/Del/2015 And ITA No. 2026/Del/2015 - - - Dated:- 8-2-2019 - SMT. BEENA A PILLAI, JUDIC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fact. 6. That having regard to the facts and circumstances of the case, Ld. CIT (A) has erred in law and on facts in deleting the addition of ₹ 3,32,93,834/- made by AO on account of difference in amount stated by company to have been spent on the property in a court case between assessee company and Shri KunwarS. Vishal by incorrectly holding that no tangible evidence has been brought on record as indicated in the statement of fact. The assessee company has itself in a civil suit filed in a court of law admitted to have incurred said investment which has been accepted in a civil court. 7. That having regard to the facts and circumstances of the case, Ld. CIT (A) has erred in law and on facts in not appreciating the facts and material brought on records by the AO including the material seized during course of search. 8. That the order of the Ld. CIT (A) being erroneous in law and on facts which needs to be vacated and the order of the A.O. be restored. 9. That the appellant craves leave to add or amend any one or more of the ground of the appeal as stated above as and when need for doing so may arise. ITA No. 2026/Del/2015 (assessment year 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search was carried out relating to assessee whether any search material relevant to assessee was found during course of search at any premises. Ld.AO was also requested to submit a copy of panchnama. Referring to para 11 of Ld.CIT (A) s order, Ld.Counsel submitted that warrant of authorisation was not issued in name of assessee but in names of its directors. He further submitted that premises occupied by assessee was covered but as panchnama shows search was conducted in case of other companies of group and directors but not assessee company it cannot be said that assessee has been searched. He placed reliance upon decision of Hon ble Supreme Court in case of Manish Maheshwari vs. ACIT reported in (2007) 289 ITR 341 in support of his arguments. 6. On the contrary Ld.CIT DR relied upon order of Ld. AO. 7. We have perused submissions advanced by both sides in light of records placed before us. 7.1. Ld. CIT (A) in impugned order has very categorically recorded as under: 15. In the instant case it is quite clear that there is no warrant of authorization in the case of the asessee company. Therefore, irrespective of the fact that the premises covered may als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdictional issue stands allowed. 8. As the assessment under section 153A(1)(b) has been quashed and set-aside, thereby additions deleted by Ld.CIT (A) becomes academic in nature. 9. In the result appeal filed by revenue for assessment year 2007-08 stands dismissed. 10. Assessment year 2011-12 Assessee has raised an additional ground for year under consideration as under: 1. That the assumption of jurisdiction to pass the assessment order u/s 143(3) dated 28-03-2013 vide notice u/s 143(2) dated 06-03-2013 is bad in law, more so when the first notice u/s 143(2) was not issued within the time period as per section 143(2) of Income Tax Act, 1961 2. That in any case and in any view of the matter, assessment order passed u/s 143(3) dated 28-03-2013, is bad in law and against the facts and circumstances of the case. 10.1 . As additional ground raised by assessee goes to root of assessment, we are inclined to consider the additional ground first. 11. Ld.Counsel submitted that assumption of jurisdiction under section 143(2) is bad in law since notice under section 143(2) has not been issued. He submitted that assessee filed original return of income o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order passed by Ld.CIT (A) for assessment year 2007-08, has been considered in aforestated paragraphs. It is observed that Ld.CIT (A) therein has analysed panchnamas drawn, which was part of remand report, forwarded by Assessing Officer dated 08/10/14 before making such factual observation. Under such circumstances, in our considered view limitation for issuance of notice under section 143 (2) has to be reckoned from date of filing of original return of income, for year under consideration being 21/09/11 and notice under section 143 (2) has been issued on 06/03/13, which is beyond limitation period. There are plethora of decisions by Hon ble Supreme Court in case of ACIT vs Hotel blue Moon reported in (2010) 188 Taxmann 113, which opines settled legal position that, requirement of issuance of notice under section 143 (2) within period of limitation is mandatory for completing assessment under section 143(3) of the Act. 14.2. Thus, in our considered opinion, legal ground raised by assessee stands allowed, and assessment order dated 28/03/13 is quashed and set-aside. As we have allowed legal ground raised by assessee, grounds raised challenging addition confirmed by Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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