TMI Blog2019 (10) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... nue : Ms. Rakhi Vimal, Sr. DR. ORDER Assessee has filed this appeal against the impugned order dated 03.05.2017 passed by Ld. CIT(A)-33, New Delhi on the following grounds:- 1. That the initiation of the proceedings u/s.148 on the basis of search material found and seized from third party are contrary to law and procedure prescribed under the Act due to non-obstante provisions in S.153C for search cases and the Ld. CIT(A) has erred in confirming action u/s.148. 2. That notice dated 28-03-2012 issued u!s.148 in the old name \/ashulinga Synthetics Pvt. ltd. by the ACIT Circle-17(1}, New Delhi is without jurisdiction, in view of the change in name of Castleton Capital Ltd. Before the issue of such notice. 3. That service of notice u/s.148 is barred by time since reasons recorded never supplied to the assessee before passing the order, accordingly the assessment so made is without jurisdiction and contrary to law. 4. That the issue of notice U/s.148 without recording reasons and without forming proper reasons of belief, without following the procedure laid down in the Act, without a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me was added to the income of the Assessee u/s. 68 of the Act and also commission @ 3.5% amounting to ₹ 70,000/- to carry out the said accommodation entry was also added to the income of the assessee and assessment was completed at ₹ 20,73,178/- vide his order dated 18.03.2013 passed u/s. 143(3)/147 of the Act. Aggrieved with the assessment order dated 18.3.2013, assessee appealed before the Ld. CIT(A), who vide his impugned order dated 03.05.2017 dismissed the appeal of the assessee. Against the impugned order dated 3.5.2017, assessee is in appeal before the Tribunal. 3. No doubt that assessee has raised as many as 09 grounds of appeal, but at the time of hearing, he only argued the ground no. 5 i.e. The assessment made without service of any notice u/s. 143(2) of the Act and the Ld. CIT(A) has erred in stating that notice u/s. 143(2) has duly been served, without confronting the assessee with the remand report and the evidence produced by the AO before the Ld. CIT(A). He draw my attention towards the order of the Ld. CIT(A) and stated that assessee has taken this ground before the Ld. CIT(A) vide ground no. 3.1 which is at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, from the assessment file the office copy of notice u/s. 143(2) dated 28.02.2013 has been found in order. 4.2 In view of above, the modified ground no. 2 is rejected. 5.1 After perusing the aforesaid records especially the impugned order, proceeding sheet dated 28.2.2013 written by the AO during assessment proceedings and the findings of the Ld. CIT(A) page no. 2, as aforesaid, I find considerable cogency in the contention of the Ld. Counsel for the Assessee that the assessment made without service of any notice u/s. 143(2) of the Act and the Ld. CIT(A) has erred in stating that notice u/s. 143(2) has duly been served, without confronting the assessee with the remand report and the evidence produced by the AO before the Ld. CIT(A). It is also noted that on 28.02.2013, when Ld. Counsel for the assesee appeared before the AO in the proceedings, the AO has served the notice u/s. 143(2) of the Act on him on the same date i.e. 28.2.2013 by hand, which shows that the notice was served in an improper manner and also shows the non-application of mind on the part of the Assessing Officer and also against the spirit of the decision of the Hon ble Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported at 323 ITR 249 by observing as under:- Learned Counsel for the Assessee submitted that assessee filed reply to the notice under section 148 of the I.T. Act on dated 26.11.2013 which is noted in the assessment order, copy of which, is filed at page-11 of the paper book, in which, assessee explained that the return already filed under section 139(1) may be treated as return filed inresponse to notice under section 148 of the I.T. Act. He has submitted that on the same day A.O. issued notice under section 143(2) i.e., on 26.11.2013, copy of which, is filed at page-12 of the paper book. He has, therefore, submitted that the A.O. has not validly assumed jurisdiction under section 147 and 143(3) of the I.T. Act to pass the assessment order against the assessee. He has submitted that the issue is covered in favour of the assessee by the judgment of the Hon ble Delhi High Court in the case of Director of Income Tax vs. Society for Worldwide Interbank Financial Telecommunications (2010) 323 ITR 249 (Del.) in which it was held as under : Both the CIT(A) and the Tribunal have returned a concurrent and clear finding of fact that the notice under s. 143(2) was issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. On this count also, the assessment deserves to be quashed. Accordingly, under the facts and circumstances of the case, the legal grounds of the assessee are allowed. 7. On the other hand, Ld. D.R. submitted that assessee did not file return under section148 within the specified period. Therefore, this ground of appeal of assessee may be dismissed. 8. After considering the rival submissions, I am of the view that the issue is covered in favour of the assessee by the Judgment of Hon ble Delhi High Court in the case of Director of Income Tax vs. Society for Worldwide Interbank Financial Telecommunications (supra) and Order of ITAT, Delhi Bench in the case of Shri Harsh Bhatia, New Delhi vs. ITO, Ward-50(3), New Delhi (supra). It is an admitted fact that assessee filed reply in response to the notice under section 148 of the I.T. Act on 26.11.2013 and submitted before A.O. that original return filed before him may be treated as return filed in response to the notice under section 148 of the I.T. Act. The A.O. on the same day served notice under section 143(2) upon assessee-company whose signature tally on the said notice. Therefore, notice iss ..... 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