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2019 (5) TMI 747

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..... ated and is liable to be set aside and quashed - Decided in favour of assessee. - ITA.No.1942/Del./2013, ITA.No.3632/Del./2013 - Dated:- 9-5-2019 - Shri Bhavnesh Saini, Judicial Member And Shri O.P. Kant, Accountant Member For the Assessee : Shri Ved Jain, Advocate., Shri Ashish Goyal, C.A. For the Revenue : Smt. Rinku Singh, Sr. D.R. ORDER PER BHAVNESH SAINI, J.M. Both the cross-appeals are directed against the Order of the Ld. CIT(A)XV, New Delhi, Dated 25.03.2013, for the A.Y. 2009-2010. 2. Briefly the facts of the case are that assessee company filed its return of income on 29.09.2009 declaring profit of ₹ 22,71,790/-. The case was selected for scrutiny. The A.O. made certain additions to the returned income and computed the income at ₹ 6.41 crores vide assessment order under section 143(3) Dated 28.12.2011. The assessee challenged the additions before the Ld. CIT(A). The Ld. CIT(A) partly allowed the appeal of assessee. 3. Both the parties are in cross-appeals. 4. We have heard the Learned Representatives of both the parties and perused the material available on record. 5. The assessee on Ground No.1, challenged the validity of the assessment proceedings because .....

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..... other address at 3, Tansen Marg, Bengali Market, New Delhi was shown as was also shown in the return of income. Copy of the remand report was provided to the assessee for rejoinder. Assessee submitted that the A.O. in the remand report has only referred to address of Gurudwara Road, Karol Bagh and has made no reference to the address of 3, Tansen Marg, Bengali Market, New Delhi, mentioned in the PAN application as for return purposes and as communication address . The assessee company filed copy of the acknowledgment of income tax returns for A.Ys. 2001-2002 to A.Y. 2011-2012 in support of the contention that address in the tax return filed has always been shown as 3, Tansen Marg, Bengali Market, New Delhi . Further, the assessee also filed copies of various documents as evidence in support of its contention that even the A.O, on time to time, had served various notices, the assessment orders of the assessee company for various proceedings on the above referred address. In this regard, the assessee filed several documents before the Ld. CIT(A) to show that the address of the assessee is mentioned at 3, Tansen Marg, Bengali Market, New Delhi. Such documents are notices under sectio .....

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..... , the undisputed fact, as confirmed by the Id. AR, is that the premise of the appellant at Karol Bagh was also in the possession of the appellant during the year and was not let out to any 3rd party during the year. The Ld. AR has got the inspection of the file done and there is no evidence that the said notice was unserved, which is likely, as the appellant was holding possession on the premise at that address. Under these circumstances, the probability of preponderance suggest that there is no reason why the notice sent at the address at Karol Bagh, whose possession was not denied by the appellant, may not have been served on the appellant or any Authorized representative thereof, even though the appellant may have given some other address for return filing purpose. The position would have been different if the notice had been sent at some unrelated address, or address for the premise let out or sold by the appellant, or the premise not in possession of the appellant due to any reason. However, the address at the first notice dated 30.8.2010 is that of one of the premise of the appellant, and there is no evidence of return of the same by postal department, the proceedings cannot .....

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..... he assessee for communication in its PAN data and assessee had selected the address at 2659/3, Gurudwara Road, Karol Bagh, New Delhi as address for communication. The assessee did not change the PAN data and that notice sent through speed post never returned back to the A.O. Therefore, there is a presumption that same have been duly served upon the assessee. In support of the contention, the Ld. D.R. filed copy of PAN data and also submitted that refund was also provided at the same address along with intimation under section 143(1) of the I.T. Act, 1961. Copy of the receipt of speed post along with notice under section 143(2) dated 30.08.2000 also placed on record. The Ld. D.R. relied upon Judgments of Hon ble Delhi High Court in the case of CIT vs. M.B. Energy Corporation 337 ITR 389 (Del.) and CIT vs. Yanu Industries Ltd., 214 CTR 445 (Del.). 9. We have considered the rival submissions. It is not in dispute that assessee filed return of income on 29.09.2009 and therefore, as per proviso to Section 143(2) of the I.T. Act, notice under section 143(2) should have been served at any time within the period of six months from the end of the financial year ending on 31.03.2010 i.e., on .....

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..... tion 143(2) was served upon the assessee which was beyond the above statutory period. The assessee filed objection before A.O. at assessment stage in which assessee denied service of any notice under section 143(2) within the period of limitation. The assessee also pleaded in the reply that in case any other notice have been served in past, such details may be brought on record and provided to the assessee. The assessee also filed affidavit of Shri Rakesh Jain, Managing Director of the assessee company in which the assessee denied service of any notice under section 143(2) prior to notice dated 28.02.2011. Thus, the material on record have not been disputed or rebutted by the Revenue. The A.O. however, in the remand report before the Ld. CIT(A) contended for the first time that notice under section 143(2) dated 30.08.2010 was sent by speed post on 03.09.2010 at 2659/3, Gurudwara Road, Karol Bagh, New Delhi, within the period of limitation. Copy of the notice and speed post receipt is filed on record. It was, therefore, claimed that it was served upon the assessee because the original notice did not return back to the Revenue. Therefore, there is a presumption of service of notice u .....

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..... ld be to no avail since the address given in the notice was not the last known address of the Assessee. 9. Mr. Sahni then submitted that it was incumbent on the Assessee to have got his changed address entered in the PAN Data Base failing which the AO would only go by the address given in the record of the relevant AY which in the case is AY 2001-02. 10. The Court is unable to agree with this submission. No provision in the Act has been shown to the Court which obliges the Assessee to ensure that his changed address is entered in the PAN Data Base failing which he is precluded from insisting on the notice under Section 148 being issued to him at the known address and being served upon him. In the present case, on facts, it is not in dispute that the AO was aware of the change of address of the Assessee and yet the notice under Section 148 of the Act was issued at the older address. 9.4. It is not in dispute that assessee disclosed address at 3, Tansen Marg, Bengali Market, New Delhi, in the return of income and such address is also disclosed in the returns of income filed for A.Ys. 2001-2002 to 2011- 2012. Even statutory notices have been issued by the A.O. at the same address for .....

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