TMI Blog2023 (10) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... - SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER For the Appellant : Mr. Akhilesh Kumar and Mr. Vipin Kumar, Advocates For the Respondent : Ms. Maimum Alam, Sr. DR ORDER PER M. BALAGANESH AM: This appeal of the assessee arises out of the order of the Learned Commissioner of Income Tax (Appeals)-15, Delhi, [hereinafter referred to as Ld. CIT(A) ] in Appeal No.111/18- 19/CIT(A)-15 dated 22/02/2019 against the order passed by Dy. Commissioner of Income Tax, Circle-8(1), New Delhi (hereinafter referred to as the Ld. AO ) u/s 147/143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) on 26/12/2017 for the Assessment Year 2010-11. 2. The assessee has raised various grounds of appeal: 1. Because the Id. CIT(A) has erred on law and facts in confirming the assessment order making an addition of Rs. 1,00,00,000/- u/s 68 and proviso to Sec 68 of the Act whereas the proviso to Sec 68 was not applicable in the AY 2010- 11 and the burden u/s 68 was duly discharged by the appellant. 2. Because the CIT(A) has erred on law and facts in confirming assessment order which was passed in pursuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first year. 8. Because the first year. Because the ld. CIT(A) has erred on law and facts in confirming addition made by Ld. AO without considering the documentary evidence filed by the assessee u/s 68 of the Act in due discharge of the burden of proof on the part of assessee, and without confronting any adverse material to the assessee against the principles of natural justice. 9. That the appellant craves the leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing and all the above grounds are without prejudice to each other. 3. We find that the assessee has raised the preliminary objection for invalid assumption of jurisdiction by the Ld. A.O. for reopening the assessment of various facets. The interconnected issue involved therein is that no notice u/s 143(2) of the Act was issued and served on the assessee after the assumption of jurisdiction by the Ld. A.O. in the reassessment proceedings. Since, this issue goes to the root of the matter, we deem it fit to address the same before going into the merits of the addition made u/s 68 of the Act in the sum of Rs. 1 Crore. 4. We have heard the rival submissions and perused t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny M/s Edge Infrabuild Pvt. Ltd. has accommodation entry from Himanshu Verma Group in F. Y. 2009-10 as follows: Name PAN Name of Himanshu Verma Group Company Amount (Rs.) Edge Infrabuild Pvt. Ltd. AACCE3120C Jaguar Softech Pvt. Ltd. 50,00,000 Shubh Propbuild Pvt. Ltd. 50,00,000 3. Reasons for formation of belief The assessee company has received fund and credited in its' books of M/s Edge Infrabuild Pvt. Ltd. from M/s Jaguar Softech Pvt. Ltd. and M/s Shubh Propbuild Pvt. Ltd. who are involved in providing of accommodation entries which are duly been emerged in the investigation carrion by ADIT, Inv. Wing -6(3), New Delhi. It is also apparent from the information received from investigation wing that these companies have transferred fund to the assessee company in lieu of cash. The director of these shell companies are found dummy and bogus entity from which the assessee has received Rs. 1,00,00,000/- and being used to transferred beneficiary are undiscl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the company in the name of Trapati Propbuild Pvt. Ltd. Accordingly, the Inspector had to affix the summons u/s 131 of the Act at the said premises. (b) The Inspector visited the office address of Ikshit Softech Pvt. Ltd and could not find any such company with such name. Accordingly, he had to affix summons issued u/s 131 of the Act at the premises. Based on this, the ld. AO concluded that assessee could not satisfactorily prove the nature and source of credit received from these two companies totaling to Rs 1,00,00,000/- which was treated by the AO as unexplained cash credit u/s 68 of the Act and added the same to the total income. 6. This action of the Ld. AO was upheld by the Ld. CIT(A). 7. At the outset, we find that the Ld. AR made a preliminary objection that notice u/s 143(2) of the Act was not issued to the assessee in the reassessment proceedings. Hence, he pleaded that the entire reassessment proceedings without the issuance of mandatory notice u/s 143(2) of the Act, had to be quashed as void abinitio. When this was confronted to Ld. DR, the Ld. DR vehemently relied upon para 4.6 of the order of the Ld. CIT(A) which read as under: 4.6. The AR of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmities to be proper and valid if there was requisite participation on part of the assessee. It is, however, to be noted that the Section does not save complete absence of notice. For Section 292BB to apply, the notice must have emanated from the department. It is only the infirmities in the manner of service of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself. 10. Since the facts sin record are clear that no notice under Section 143(2) of the Act was ever issued by the Department, the findings rendered by the High Court and the Tribunal and the conclusion arrived at were correct. We, therefore, see no reason to take a different view in the matter. 8. Respectfully following the same, we hold that non- issuance of notices u/s 143(2) of the Act is jurisdictional defect not curable u/s 292BB of the Act. Ld. DR before us sought time to check the assessment records in this regard and provide written submission thereon. The matter was taken as heard on 25/04/2023 but no such written submission was filed by the Ld. DR till the date of passing of this order. Accordingly, we confirm the observation of the Ld. CIT(A) tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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