TMI Blog2021 (12) TMI 1460X X X X Extracts X X X X X X X X Extracts X X X X ..... Pillai, Judicial Member For the Appellant : Shri Ravishankar S.V, Advocate For the Respondent: Shri Sumer Singh Meena, CIT-OSD(DR) ORDER 1. Present appeal is filed by assessee against order dated 28.10.2019 passed by Ld. CIT(A)-10, Bangalore on following grounds of appeal. 1. The order of the learned CIT(A) in so far as it is against the Appellant is opposed to law, equity and weight of evidence, natural justice, facts and circumstances of the case. 2. The Appellant denies herself to be liable to be assessed to total income of Rs. 6,93,69,474/- against the returned income of Rs. 16,79,980/- under the facts and circumstances of the case. 3. Limitation a) The learned CIT(A) was not justified in stating that the delay was due to the holidays and hence served on 06/01/2017, when the order ought to have been served latest by 02/01/2017, which was a Monday, and consequently the order served with an inordinate delay, ought to be construed as an order passed beyond limitation, on the facts and circumstances of the case. 4. Additional grounds before the CIT(A): a) The notice issued under section 143(2) is bad in law, on the facts and circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddition of Sundry creditors of Rs. 4,05,82,272/- a) The learned CIT(A) was not justified in confirming the additions of the creditors, by failing to appreciate that the appellant has filed the entire details of the purchases to substantiate that the creditors were genuine, on the facts and circumstances of the case. b) The authorities below failed to appreciate that apart from the opening balance all the other entries during the year are duly supported by invoices and payments proof and hence the question of making any addition on such count does not arise on the facts and circumstance of the case. c) The authorities below failed to appreciate that the addition of the opening credit balance is not in accordance with law and such opening balance cannot be added during the impugned assessment year on the facts and circumstance of the case. d) Without prejudice, the order for AY 2013-14 U/s 143(3) was passed and no additions of the opening balances could have been added as income of the appellant for the AY 2014-15, on the facts and circumstances of the case. 7. Grounds regarding addition on account of unsecured loans: a) The learned CIT(A) was not justif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant prays that the appeal may be allowed in the interest of justice and equality. 2. The Ld. AR submitted that ground no. 4 goes to the root cause of the present appeal. He submitted that assessee is challenging that no notice u/s. 143(2) was issued by the officer having jurisdiction over assessee. He submitted that this issue was raised as additional ground before Ld. CIT(A). However, the same was not adjudicated. He thus submitted that ground no. 4 may be considered before going into the merits of the case. 3. Brief facts of the case are as under. The assessee is an individual and is proprietrix of M/s. Hydromatic Engineering Company, dealing in pipe fitting, valves and automation products. She filed return of income for AY 2014-15 on 01.10.2014, declaring total income of Rs. 16,79,980/-. The case was taken up for a scrutiny. It is submitted that, assessee was regularly filing her return of income and was assessed with its Income Tax Officer, Ward - 7(2)(2), Bangalore. 3.1. For year under consideration, notice u/s. 143(2) was issued by ITO, Ward-2(3)(2) dated 28.08.2015. The said notice is placed at page 1089 of paper book. As per the said notice, the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal in case of Sunworld Infrastructure vs. ITO reported in (2015) 64 taxmann.com 471 and Rajeev Goel vs. ACIT reported in (2019) 76 ITR (Trib.) 107 (Delhi) and Manoj Kumar vs. ACIT reported in (2020) 79 ITR (Trib) 158. 7.4. Ld. AR submitted that the notice u/s. 143(2) of the Act was issued by the officer who did not have jurisdiction over assessee and that Assessing Officer having jurisdiction over assessee who has to pass the assessment order was required to issue fresh notice u/s. 143(2) to assume jurisdiction after transfer of assessment. Merely because assessee participated in assessment proceedings cannot be construed to be a waiver of objecting the non-issuance of notice u/s. 143(2) of the Act. 8. We have perused the submissions advanced by both sides in the light of records placed before us. 8.1. It is necessary to cull out relevant dates required for adjudicating the legal ground raised by assessee. 01.10.2014 - the assessee filed her return of income in the capacity of proprietrix of M/s. Hydromatic Engineering Company with ITO, Ward 5(2). 28.08.2015 - the case was selected for scrutiny, notice u/s. 143(2) issued by ITO, Ward - 2 (3)(2) fixing the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... io and the jurisdictional AO is to issue notice u/s. 143(2). Hon'ble Supreme Court held that issuance of notice u/s. 143(2) by the Assessing Officer having jurisdiction over an assessee is mandatory for assuming jurisdiction to pass scrutiny assessment u/s. 143(3) of the Act, and that absence of valid notice u/s. 143(2) is not a curable defect. The same proposition was reiterated by Hon'ble Supreme Court in the case of CIT vs. Laxman Das Khandelwal (supra) . Hon'ble Supreme Court observed as under. 5. At the outset, it must be stated that out of two questions of law that arose for consideration in Hotel Blue Moon's case the first question was whether notice under Section 143(2) would be mandatory for the purpose of making the assessment under Section 143(3) of the Act. It was observed:- 3. The Appellate Tribunal held, while affirming the decision of CIT(A) that non-issue of notice under Section 143(2) is only a procedural irregularity and the same is curable. In the appeal filed by the assessee before the Gauhati High Court, the following two questions of law were raised for consideration and decision of the High Court, they were: (1) Whether o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was: (a) Not served upon him; or (b) Not served upon him in time; or (c) Served upon him in an 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. A closer look at Section 292BB shows that if the assessee has participated in the proceedings it shall be deemed that any notice which is required to be served upon was duly served and the assessee would be precluded from taking any objections that the notice was (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner. According to Mr. Mahabir Singh, learned Senior Advocate, since the Respondent had participated in the proceedings, the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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