TMI Blog2020 (12) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... , SMC Bench, Delhi in the case of Manish Kumar Sons HUF vs. ITO Ward 1(5), New Delhi [ 2018 (11) TMI 1417 - ITAT DELHI] and decided the similar issue in favour of the assessee. - ITA NO. 831/DEL/2017 - - - Dated:- 18-12-2020 - Shri H.S. Sidhu, Judicial Member And Shri Anil Chaturvedi, Accountant Member For the Assessee : Sh. Kapil Goel, Advocate For the Department : Sh. Prakash Dubey, Sr. DR. ORDER PER H.S. SIDHU, JM: This appeal filed by the Assessee is directed against the impugned order dated 11.01.2017 passed by the Ld. CIT(A)-35, New Delhi in relation to assessment year 2013-14 on the following grounds:- 1. That on the facts and in the circumstances of the case and in law, AO erred in issuing notice u/s. 143(2) on the basis of CASS, which is not in accordance with jurisdictional conditions stipulated under the act. 2. That on the facts and in the circumstances of the case and in law, Ld. CIT(A) erred in sustaining the addition made by the AO on the adhoc basis (without doubting audited defect free books of accounts), on basis of mere estimate by substituting 60% disallowance made by AO with 40% (on foreign travel expenses and business p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly allowed the appeal of the assessee. Now the assessee is aggrieved with the impugned order and raised the original grounds of appeal as well as additional grounds of appeal, as reproduced above before the Tribunal. 4. At the time of hearing, Ld. Counsel for the assessee stated that assessee filed its return of income u/s. 139(1) of the Act on 29.8.2013 and the AO issued notice u/s. 143(2) of the Act on 04.9.2014. He further stated that this notice was issued by the DCIT, Circle 3(1), New Delhi. Thereafter by transfer memo AO stated reason for transfer the case from DCIT, Circle 3(1) to ITO, Ward 5(1), New Delhi is returned income before ₹ 30 lacs which correlates to CBDT Instruction NO. 1/2011 dated 31.1.2011. He further stated that the correct AO i.e. ITO, Ward 5(1), New Delhi has issued noticed u/s. 143(2) of the Act dated 08.9.2015 which is time barred. Therefore, the assessment order dated 27.01.2016 passed by the ITO, Ward 5(1), New Delhi is without jurisdiction. 4.1 It was further submitted that the assessment framed u/s. 143(3) of the Act for the period under consideration is void ab initio and the impugned order is also deserve to be cancelled, because it is b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. 139(1) of the Act on 29.8.2013 and the AO i.e. DCIT, Circle 3(1), New Delhi issued notice u/s. 143(2) of the Act on 04.9.2014. Thereafter by transfer memo, AO stated the reason for transfer the case from DCIT, Circle 3(1) to ITO, Ward 5(1), New Delhi is returned income before ₹ 30 lacs which correlates to CBDT Instruction NO. 1/2011 dated 31.1.2011. The correct AO i.e. ITO, Ward 5(1), New Delhi has issued noticed u/s. 143(2) of the Act dated 08.9.2015 which is time barred, hence, the assessment order dated 27.1.2016 passed by the ITO, Ward 5(1), New Delhi is without jurisdiction and void ab initio. Therefore, in our view the impugned order passed by the Ld. CIT(A) deserve to be cancelled, because it is based upon the illegal assessment order. We find that similar issue has been dealt and adjudicated by the ITAT, SMC Bench, Delhi in the case of Manish Kumar Sons HUF vs. ITO Ward 1(5), New Delhi dated 22.1.2018 in ITA No. 1563/Del/2018 (AY 2015-16) and decided the similar issue in favour of the assessee, wherein the Tribunal has decided as under:- 9. I have heard both the parties and perused the records, especially the Paper Book filed by the Assessee s counsel and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is framed by ITO Ward 1(5) Faridabad, simply in extension to proceedings initiated by Hazaribagh DCIT Circle 2 who is admittedly not AO of assessee within meaning of section 2(7A) of the Act on date of issue of notice u/s 143(2) of the Act. So on this short count itself impugned proceedings deserves to be quashed being unsustainable in the eyes of law. I further note that the case laws cited by the ld. counsel for the assessee are applicable in the present case. However, the most direct decision of the ITAT, Delhi (E-Bench)l was decided in case of Al Faheem Meatex Pvt. Ltd. vs. ACIT in ITA Nos. 6122 6123/Del/2015 (Ayrs. 2010-11 2011-12) vide order dated 09.6.2017 which is directly applicable in the present case. The Tribunal in the case of Al Faheem Meatex Exports Pvt Ltd (supra) vide para No. 6 has held as under:- 6. We have carefully consider the rival contentions and perused the copies of the return filed before us by the assessee. The first paragraph of the assessment order speaks that notice under section 143(2) was first issued by the DCIT, Circle, Ghaziabad on 29.8.2011. Admittedly, the notice should have been issued on or before 30th September, 2011 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was duly followed by the SMC Bench, in the case of Sh. Yogesh Yadav vs. ITO passed in ITA No. 1757/Del/2016 (AY 2011-12) vide order dated 09.10.2017 being the identical facts / reasoning with the aforesaid case of Al Faheem Meatex Exports Pvt. Ltd. (Supra) and accordingly assessment framed as declared as void-ab-initio. 10. Keeping in view of the facts and circumstances of the case and respectfully following the aforesaid precedents being the identical facts of the present case, I hold the present assessment is void ab inito, hence, the same is quashed and accordingly, the additional legal ground raised by the assessee is allowed. Since I have quashed the assessment on the legal ground itself, the other grounds on merit became academic, hence, need not be adjudicated. 11. In the result, the appeal of the assessee is allowed. 6. Keeping in view of the facts and circumstances of the case and respectfully following the aforesaid precedents being the identical facts of the present case, we hold the present assessment is void ab inito, hence, the same is quashed and accordingly, the additional legal grounds raised by the assessee are allowed. Since we have quashed the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
