TMI Blog2023 (1) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... e Revenue : Sh. Avikal Manu, Sr. DR ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: The present appeal has been filed by the assessee against the order of the ld. CIT(A)-19, Kanpur dated 11.03.2016. 2. Following grounds have been raised by the assessee: 1. That on the facts of the case and under the law, the assessment proceedings taken up concluded by the Id ACIT, Circle 55(1), New Delhi, are liable to be quashed because he had illegally assumed jurisdiction to assess the assessee, merely on the basis of transfer memo issued by the Id A.O., Ward 35(4), New Delhi on her own. 2. That on the peculiar facts of the case and under the law, the Id. CIT(A) has erred in not quashing the assessment order, which was pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the assessee because the assessee had raised objection vide its letter dt. 30.06.2014 on the very first occasion when the Id. ACIT, Circle-55(1), New Delhi had commenced the assessment proceedings. 3. The assessee firm is carrying on the business of construction as builder and developer. Business is being conducted under the name and style of M/s Amba Construction Company. During the year under assessment, the assessee has shown gross turnover of Rs.6,68,73,346/- and net profit of Rs.33,41,680/- has been declared thereon giving thereby N.P. ratio of 5.03%. 4. At the outset, the ld. AR argued on the legal issue of nonservice of notice u/s 143(2) of the Income Tax Act, 1961 on the assessee by the ITO, Ward-35(4). 5. The fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fide. b. Also, in ease of notice u/s 143(2) which was returned, the remarks on the envelope stated no such firm on this address , but subsequent notices which have been returned from this address have been returned with remarks Left . This change of remarks only points out to only one possibility, that the notices are selectively being returned by someone on that address. c. Another interesting fact is that when the assessee filed the initial grounds of appeal, there is no mention of nonservice of notice u/s 143(2) which clearly shows that it is just an afterthought of the assessee to deviate attention. 6. It is an undisputable fact that the notice has been issued but has not been served on the assessee and the said notice is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO has returned un-served then it cannot be treated as service of notice in accordance with the provisions of Section 27 of General Clauses Act 1897 and Section 143(2) of the Income Tax Act, 1961. 9. The Hon ble Punjab Haryana High Court in the case of CIT Vs. Cebon India Ltd. 347 ITR 583 held that in the absence of notice being served, the Assessing Officer had no jurisdiction to make assessment. Absence of notice cannot be held to be curable under section 292BB of the Act. 10. The Hon ble Gujarat High Court in the case of CIT Vs. K.M. Ravji [Tax Appeal No. 771/2010], vide order dated 18.07.2011 held that in absence of issue of notice u/s 143(2) within the time envisaged by the legislature in the said provisions, the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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