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TMI Blog2019 (12) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no effective or valid service of the said notice upon the appellant within the time prescribed. 1.1 That the Ld. CIT(A) has grossly erred in misinterpreting provisions of section 292BB by completely ignoring the judgment of H'ble court in the case of Hotel Blue Moon (2010) 321ITR 362(SC) as followed by the jurisdictional High Court in the case of CIT Vs. Sukhini P. Modi 2014 367ITR 862(Guj.) and thereby further erred in not giving any finding on the binding judgment on the effect of non-service of the notice u/s. 143(2) and/or its service within prescribed time limit. 2. On the facts and circumstances of the case as well as in law the Ld.CIT(A) has grossly erred in rejecting the appellant's ground raised in appeal that granted by the A.R. that too without any knowledge or consent by the appellant for agreeing to addition cannot be held as a valid consent, and therefore, the appellant should not suffer for such mistake or failure on the part of the A.R. as such no estoppels should be created or held, when the ought to have allowed the same. 3. On the facts and circumstances of the case as well as in law the Ld.CIT(A) has grossing erred in not adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssuance/service of notice under section 143(2) of the Act is not acceptable. 4.4. The assessee in its rebuttal dated 15-7-2017 before the learned CIT (A) referred to the postal delivery slip for the issuance of notice under section 143(2) of the Act dated 5 September 2014 and pointed out certain defects therein as reproduced verbatim here-in-below : In this connection, the appellant would like to submit as follows:- (a) First and foremost, as may be perused from the so-called postal delivery slip, the most crucial point is that at the appropriate column (col. 29), the date of delivery and (col. 30) time of delivery, both are lying blank. (b) Secondly, the official postal stamp of the post-office delivering the article is missing on this alleged postal slip which is a must in this mode of delivery. (c) Thirdly, Col.27 indicating name of the person taking delivery of the item is lying blank. (d) Fourthly, the alleged signature appearing at col. 28 is apparently illegible. Anyhow, the appellant says and states that it is neither a signature of any of the partners of the firm nor any of the authorized person/agent working under its establishment. The appellant denies o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A). It is well settled principle of law that legal ground can be raised at any stage by the appellant. The appellant, therefore request that the legal ground raised by the appellant, challenging the legality and validity of the notice u/s 143(2) may kindly be adjudicated and decided accordingly. 3.(v) In the concluding part of the report, the A.O. has rejected the contention of the appellant in regard to issuance of alleged notice u/s 143(2) of the Act. The appellant says and states that the comments of the A.O. are wholly incorrect and unacceptable, in view of what is submitted as aforesaid. 4. Reverting back to the appellant's challenge that the impugned order passed by the A.O. is bad in law, illegal and without valid jurisdiction, in absence of valid service of notice u/s 143(2) of the Act, which is a fundamental requirement for assuming jurisdiction to proceed for making assessment, the appellant would like to submit as follows: (1) That time and again, various courts have held that issuance and service of notice u/s 143(2) of the Act goes to the root of the assessment proceedings. The notice has to be properly addressed to the party, has to be served on the addre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act is invalid and liable to be quashed. (5) To sum up, in view of the peculiar facts and circumstances of the case, aforesaid submission and available case laws being relied upon, it may kindly be held that there was no justification for proceeding to make regular assessment in absence of service of valid notice u/s 143(2) of the Act, and the impugned order is liable to be quashed." 4.5. However, the learned CIT (A) observed that the assessee has participated in the assessment proceedings under section 143(3) of the Act as evident from the remand report of the AO. Accordingly he was of the view that the assessee is precluded from taking any objection regarding the validity of the service of notice in pursuance to the express provisions of section 292BB of the Act. Accordingly, the learned CIT (A) rejected the ground of appeal of the assessee. Being aggrieved by the order of the learned CIT (A), the assessee is in appeal before us. 5. The learned AR before us filed a paper book running from pages 1 to 108 and reiterated the submissions as made before the authorities below. 6. On the other hand, the learned DR before us vehemently supported the order of the lower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n improper manner: Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment." 7.2 Accordingly, we hold that omission on the part of the Assessing Authority to issue proper notice under Section 143(2) of the Act cannot be a procedural irregularity and the same is not curable, which is referred in Hotel Blue Moon's case (supra). The flaw found in the notice issued under Section 143(2) of the Act goes to the root of the matter and the same cannot be cured or dispensed with, to consider the case on merits. The Assessment Order is passed based on the invalid Notice, which does not survive. Notice is the foundation. Assessment Order built upon such defective notice would certainly fall to the ground. 7.3. However, the case before us is different so far it relates to the validity of the issuance of notice under section 143(2) of the Act. The controversy in the present case whether the statutory notice was issued within the time as prescribed under the provisions of section 143(2) of the Act. 7.4. Admittedly, the onus lies on the Revenue to substantiate based on documentary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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