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2015 (2) TMI 286 - AT - Income TaxValid service of notice under section 143(2) - validity of order passed u/s 143(3) - Held that - Since the notice was dispatched by registered post at the correct address of the assessee, which is recognized mode of service as per Rule 9 of order V of CPC 1908, the notice must be deemed to have been validly served, since the same was not received back un-served. we are in agreement with the conclusion arrived by the ld CIT(A) that the notice dated 15th October 2004 was deemed to have been served upon the assessee. An affidavit of the assessee to state the contrary in this respect, does not in any manner overcome the binding statutory presumption in this respect without any evidence to rebuilt the same. See CIT Vs. Yamu Industries Ltd. 2007 (5) TMI 237 - DELHI HIGH COURT - Decided against assessee. Addition u/s 43B read with Section 2(24)(x) - employee contribution to PF and deposited late by the assessee - CIT(A) deleted the addition - Held that - As relying on CIT Vs. Aimil Ltd. Where for the assessment year 2002-03 the assessee had deposited employer s contribution as well as employee contribution towards provident fund and ESI after the due date, as prescribed under the relevant Act/ Rules but before the due date for filing the return under the Income-tax Act Held accordingly, that no disallowance could be made in view of the provisions of Section 43B as amended by the Finance Act, 2003. - Decided in favour of assessee. Addition u/s 68 - addition on account of share capital - CIT(A) deleted addition admitting additional evidence - Held that - CIT(A) ought to have recorded a specific findings spelling out the reason and basis before admitting such evidence and considering them for adjudication. As the statutory pre-condition has not been fulfilled we set-aside the order of the ld CIT(A) as regards the addition of ₹ 223 lakhs. However on the perusal of the remand report we find that the AO also sought to lead additional evidence in the form of investigation carried out by Investigating Wing apart from seeking personal deposition of share holders. In such a scenario, it would be in the fitness of things and interest of justice that the issue in hand as regards, the addition of ₹ 223 lakhs is remanded back to the file of AO for fresh adjudication. The assessee may be permitted to adduce any fresh evidence and the AO before relying upon any evidence should supply the same to the assessee and principles of natural justice shall observed before passing the fresh order before drawing any inference. In the result, the deletion of addition of ₹ 45 lakhs addition on account of share capital includes addition of ₹ 45 lakhs pertains to share capital raised in the preceding Assessment Year. This addition has been rightly deleted by the ld CIT(A) as no sum has been credited in the instant year is upheld and the remaining addition of ₹ 223 lakhs is remitted back to the file of AO for fresh adjudication as directed above. Decided partly in favour of assessee and revenue for statistical purposes. Disallowance of expenditure - CIT(A)has upheld the addition - Held that - The appellant company neither during assessment proceedings nor during appellate proceeding has brought anything on the records to meet out the observations made by the AO. The appellant has spent substantial amount of construction of building without having proper bills and vouchers. The fabricators has confirmed nil balance to the AO whereas the appellant books of account reflects a debit balance of ₹ 1,83,914/-. Therefore, disallowance as made by the AO in the assessment order is confirmed. - Decided against assessee.
Issues Involved:
1. Validity of the order passed under Section 143(3) without proving the valid service of notice under Section 143(2). 2. Addition under Section 43B read with Section 2(24)(x) regarding late deposit of PF contributions. 3. Addition under Section 68 regarding share capital received. Issue-wise Detailed Analysis: 1. Validity of the Order Passed under Section 143(3) Without Proving the Valid Service of Notice under Section 143(2): The assessee argued that the CIT(A) was not justified in holding the order passed under Section 143(3) as valid without proving the valid service of notice under Section 143(2) within the limitation period. The CIT(A) rejected this contention, stating that the notice was sent by registered post to the correct address and was not returned unserved, thus presuming it was served within three to four days. The Tribunal upheld the CIT(A)'s decision, citing the presumption under law that notice sent by registered post and not returned unserved is deemed to be served within the period of limitation, as supported by the Delhi High Court in CIT v. Yamu Industries Ltd. The Tribunal dismissed this ground of appeal by the assessee. 2. Addition under Section 43B Read with Section 2(24)(x) Regarding Late Deposit of PF Contributions: The assessee contested the addition of Rs. 8,136 under Section 43B read with Section 2(24)(x) for late deposit of employee contributions to PF. The Revenue also contested the deletion of the addition for late deposit of employer contributions to PF. The Tribunal referenced the case of CIT Vs. Aimil Ltd., where it was held that no disallowance could be made if the contributions were deposited before the due date for filing the return under the Income-tax Act. Consequently, the Tribunal deleted the disallowance and dismissed the Revenue's ground while allowing the assessee's ground. 3. Addition under Section 68 Regarding Share Capital Received: The assessee and the Revenue both contested the CIT(A)'s partial deletion and sustenance of additions under Section 68 regarding share capital received. The assessee raised Rs. 2.68 crores through equity shares but failed to furnish details during the assessment proceedings. The CIT(A) categorized the shareholders into four categories and deleted the addition for share capital raised in the preceding assessment year, sustaining the addition for the current year. The Tribunal upheld the deletion of Rs. 45 lakhs for the preceding year but remanded the addition of Rs. 223 lakhs for fresh adjudication, noting that the CIT(A) failed to record specific findings for admitting additional evidence under Rule 46A. The Tribunal directed the AO to allow the assessee to adduce fresh evidence and ensure the principles of natural justice are observed. Other Issues: The Tribunal dismissed the assessee's ground regarding the disallowance of Rs. 4,23,717 out of total building construction expenses, as the assessee failed to provide proper bills and vouchers to counter the AO's observations. The Tribunal found no infirmity in the CIT(A)'s conclusion and upheld the addition. Conclusion: The Tribunal's decision included dismissing the ground regarding the validity of the order under Section 143(3), deleting the disallowance under Section 43B, upholding the deletion of Rs. 45 lakhs under Section 68, and remanding the remaining addition of Rs. 223 lakhs for fresh adjudication. The ground regarding building construction expenses was also dismissed. The appeals were allowed for statistical purposes.
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