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TMI Blog2023 (12) TMI 1086X X X X Extracts X X X X X X X X Extracts X X X X ..... , Adv For the Department : Shri Kanv Bali, Sr. DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER:- This appeal by the Revenue is preferred against the order of the ld. CIT(A) - 1 New Delhi dated 27.06.2016 pertaining to A.Y. 2008-09. 2. The grievances of the Revenue read as under: "1. (i) Ld. CIT (A) erred in law and on facts in treating intimation u/s "143(1) as "non-est" and in cancelling con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed by the CPC, Bangalore but intimation was never served upon the assessee. 4. When the return for A.Y 2014-15 was processed, a notice u/s 245 of the Act was sent to the assessee and the assessee came to know about the intimation for A.Y 2008-09. As the intimation u/s 143(1) of the Act was never communicated to the assessee, the assessee claimed that adjustment made by the department u/s 143(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the orders of the authorities below. The entire quarrel revolves around the following findings of the Hon'ble High Court of Delhi - Court on its Own Motion in WP(C) 2659/2012 which reads as under: "34. The onus to show that the order was communicated and was served on the assessee is on the Revenue and not upon the assessee. We may note in case an order under Section 143(1) is not commu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, has to make a distinction between fraudulent claims and claims which have been rejected on ground of technicalities but there is no communication to the assessee of the order/intimation under Section 143(1). In the later cases, the Assessing Officer cannot turn around and enforce the demand created by excommunicated order/intimation under Section 143(1). This is the fifth mandamus which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e u/s 115JB of the Act. 12. In our considered opinion, this by any stretch of imagination, cannot be considered as fraudulent activity of the assessee to deny the benefit of the decision of the Hon'ble Jurisdictional High Court of Delhi [supra]. 13. Considering the facts of the case in totality, we decline to interfere with the findings of the ld. CIT(A). 14. In the result, the appeal of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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