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2019 (5) TMI 747

..... HELD THAT:- Assessee has been consistently disclosing the address to the Revenue Department for the purpose of service and communication at 3, Tansen Marg, Bengali Market, New Delhi and this fact is also admitted by the A.O. Therefore, merely notice u/s 143(2) for this year have been issued as per PAN data would not be relevant. A.O, therefore, deliberately did not issue notice u/s 143(2) at the address available to the Revenue Department on their record at 3, Tansen Marg, Bengali Market, New Delhi. Therefore, there is no question of service of the notice at Gurudwara Road, New Delhi. We are of the view that notice u/s 143(2) have not been issued to the assessee at the correct address within the period of limitation. No notice u/s 143(2) have been served upon the assessee within the period of limitation. Therefore, entire assessment order is vitiated and is liable to be set aside and quashed - Decided in favour of assessee. - ITA.No.1942/Del./2013, ITA.No.3632/Del./2013 - 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 .....

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..... that on 15.09.2011 Shri Rakesh Jain, Managing Director of the assessee company filed affidavit whereby the above facts were affirmed on oath. 5.2. The assessee was aggrieved that A.O. did not rebut the allegations of the assessee company and did not produce any evidence that any notice under section 143(2) have been served upon the assessee company within the period of limitation. The Ld. CIT(A) sent these evidences to the A.O. and a remand report has called for from the A.O. The A.O. in the remand report dated 28.06.2012 claimed that first notice under section 143(2) was sent under speed post on 03.09.2010 at 2659/3, Gurudwara Road, Karol Bagh, New Delhi, within the stipulated period in law and was not time barred. The A.O. attached copy of the application filed by the assessee company for allotment of PAN wherein the above address along with 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, T .....

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..... tment. The appellant's contention is that it files Income Tax return from its address at 3, Tansen Marg and not from the Karol Bagh address and that the AO also had been communicating with the appellant through that address, in the past and in subsequent years. In view of this, I am in agreement with the plea of the appellant company that the Assessing Officer should have sent the notice u/s 143(2) at the address "3, Tansen Marg, Bengali Market, New Delhi-110001", which is the address given by the appellant company in its application for PAN as the address for filing the returns and for communication purposes and also in the return of income of the current year. Therefore, while there was infirmity in the aforesaid notice, to the extent it was sent at the other address of the appellant, which was distinct from the returned address, 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, .....

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..... by Shri Rakesh Jain, Managing Director of the assessee company. Learned Counsel for the Assessee submitted that since no notice under section 143(2) have been served upon assessee within the period of limitation, therefore, entire assessment order is illegal and bad in law. In support of his submission, he has relied upon Judgment of Hon ble Delhi High Court in the case of CIT vs. Lunar Diamonds Ltd., [2006] 281 ITR 1 (Del.), Judgment of Hon ble Delhi High Court in the case of Pr. CIT vs. Jai Shiv Shankar Traders Pvt. Ltd., [2016] 383 ITR 448 (Del.) and Judgment of Hon ble Delhi High Court in the case of Pr. CIT-1 vs. Atlanta Capital Pvt. Ltd., ITA.No.665 of 2015 Dated 21.09.2015. 8. On the other hand, Ld. D.R. relied upon the Order of the Ld. CIT(A) and submitted that notice under section 143(2) was to be generated on the address selected by the 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 up .....

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..... order sheet would not suffice and the copy of the notice issued under section 143(2) of the Act was not available on record. Since the Department had failed to produce the copy of the notice under section 143(2) of the Act there was no option but to agree with the findings of the Tribunal that no such notice was prepared and served upon the assessee. In the absence of this mandatory requirement of issuing statutory notice under section 143(2) of the Act, the Tribunal had rightly quashed the assessment as null and void. 9.2. The Hon ble Delhi High Court in the case of Pr. CIT vs. Jai Shiv Shankar Traders Pvt. Ltd., 383 ITR 448 (Del.) and Pr. CIT vs. Silverline 383 ITR 455 held that re-assessment order cannot be passed without service of notice under section 143(2) of the I.T. Act. 9.3. It is not in dispute that notice dated 28.02.2011 under section 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, s .....

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..... , the Assessee disclosed his address as B-115, Sarvodaya Enclave, New Delhi. Even the AO had sent letters to the Assessee at the same address on 8th August 2007. The intimation under Section 143(1) of the Act dated 25th January 2008 for AY 2006-07 was also sent by the AO to the Assessee at the same changed address i.e. B-l 15, Sarvodaya Enclave. New Delhi. There is nothing to show that the notice under Section 148 of the Act was in fact issued by the AO showing the aforementioned changed address. 8. It is the contention of Mr. N.P. Sahni, learned Senior Standing counsel for the Revenue, that the notice satisfied the requirement as to limitation under Section 149 (b) of the Act. However, as noted by the ITAT, the notice itself was not issued at the correct address. The fact that the said notice, sent by speed post, was not returned unserved, would 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 .....

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