TMI Blog2000 (6) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... In response to notice under s. 143(2) of the Act, nobody has attended. Looking to the facts and circumstances, loss is disallowed and income/loss is treated at Rs. nil. Total income/loss Rs. nil." Since the assessee has claimed the loss of Rs. 5,69,504 and the learned AO determined the income of the assessee at nil without affording an appropriate opportunity of hearing, the assessee moved an application under s. 154 on 27th April, 1989. The said application reads as under: "We are in receipt of copy of assessment order, dt. 21st March, 1989, for asst. yr. 1986-87 received by our office on 3rd April, 1989. In the above connection, first we have to submit that on the day of appointment, i.e., on 16th March, 1989, we could not att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder s. 154 and passed the following order: "The assessee vide its application dt. 27th April, 1989, has brought to my notice that there is a mistake in taking the date of filing of the return of income for the above year inasmuch as the return of income was filed on 1st May, 1986 and not on 1st May, 1988, as shown in the assessment order. On verification of the records, it is noticed that the assessee's contention is correct. The mistake being apparent from records is rectified under s. 154 of the Act to the extent of date of submission of the return of income. However, so far the claim for carry forward of loss and depreciation is concerned, the same cannot be allowed since the assessment was framed under s. 144. Income determined orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r carried forward of: (i) loss is rejected as the income for the year is determined at Rs. nil. (ii) the u/a. depreciation of Rs. 5,20,966 is allowed to be carried forward. (iii) the claim of investment allowance will be considered in the year in which assessee creates sufficient reserve in the accounts. Issue DN challan accordingly." 7. The learned CIT(A) dismissed the appeal of the assessee. 8. The learned counsel fervently submitted before us that the AO has erred in passing the order dt. 21st March, 1989, without affording an opportunity of hearing. He submitted that from perusal of order, it nowhere reveals that the notices were issued to the assessee and when the notice was served on the assessee, simply by observi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of return as 1st May, 1988. In fact, the return was filed on 1st May, 1986. All these details show the complete non-application of mind to the controversy by the AO. He should have rectified all these mistakes at the first available opportunity when the assessee pointed out that the notice issued for 16th March, 1989 was received by it in the evening of that date. Hence, it was not possible for the assessee to attend the hearing. The learned AO should have examined this aspect in the rectification application. He ought to have recorded a finding qua the service of notice and if, in fact, it was not received within time, then he should have re-called his order and decide the claim of the assessee on merits. The Hon'ble Supreme Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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