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TMI Blog2013 (11) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... affixture to be adopted only if the person refuses to sign the acknowledgement, or the serving officer after using all due and reasonable diligence, cannot find the defendant who is absent from his residence etc - Since the revenue has not challenged the order of the Commissioner of Income Tax(Appeals) for the Assessment Year 2007-08; therefore, the appeal filed by the assessee has become infructuous when the notice issued u/s 153A and u/s 142(1) has been held as against the provisions of law and consequently assessment on the basis of the said invalid notices, would not survive – Decided in favor of Assessee. - ITA Nos. 6826/Mum/2010 - - - Dated:- 8-2-2013 - Shri P. M. Jagtap, AM And Shri Vijay Pal Rao, JM,JJ. For the Appellant : Sh Dharmesh Shah For the Respondent : Sh Girjia Dayal ORDER Per Vijay Pal Rao, JM For the Assessment Year 2006-07, cross appeals are filed against the order dated 2.7.2010 of the Commissioner of Income Tax(Appeals) whereas for the Assessment Year 2007-08, the assessee has filed the appeal against the order dated 2.7.2010 of the Commissioner of Income Tax(Appeals). ITA Nos. 6826/Mum/2010 (by the assessee) 2. The assessee has raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in deleting the disallowance of Rs. .65,56,126/- out of advertisement expenses incurred, Rs.31,14,289/- out of miscellaneous expenses without discussing merits of the additional evidence furnished before him and without giving the finding that the addition was not called for in view of the additional evidence furnished before him." 5) "On the facts and in the circumstances of the case and in Law, the Ld.CIT(A) erred in deleting the addition of Rs.76,35,000/- on account of cash credits without discussing the merits of the additional evidence furnished before him and without giving a definite finding that the addition was not called for in view of the additional evidence furnished before him." 6) "On the facts and in the circumstances of the case and in Law, the Ld.CIT(A) erred in deleting the addition of Rs. 6,39,55,5781- towards unexplained sundry creditors without discussing merits of the additional evidence furnished before him and without giving a definite finding that the addition was not called for in view of the additional evidence furnished before him." 3. A search and seizure u/s 132 was carried out in the Shah Group of Jalna on 21.2.2007. The investigation wing has r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ator along with annexure, copy of the response of the official liquidator dated 11.12.2008, copy of notice u/s 143(2) dte13.8.2007 issued to the assessee through registered post. The ld DR has filed copy of the registered post receipt. Thus, the ld DR has submitted that the finding of the Commissioner of Income Tax(Appeals) is contrary to the material on record as well as the facts and therefore, is not sustainable. 5.1. On the other hand, the ld AR of the assessee has supported the order of the Commissioner of Income Tax(Appeals) and submitted that when the Commissioner of Income Tax(Appeals) has remanded the matter to the Assessing Officer and in the remand report, the Assessing Officer has not pointed out the issuance of notice either to the assessee or to the official liquidator prior to the service through affixture; therefore, the Commissioner of Income Tax(Appeals) was justified in deciding the issue on the basis of the remand report of the Assessing Officer. He has also contended that for the Assessment Year 2001-02, this issue has been decided by the Commissioner of Income Tax (Appeals) in favour of the assessee and the revenue has not challenged the finding of the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted only if the person refuses to sign the acknowledgement, or the servicing officer, after using all due and reasonable diligence, cannot find the defendant who is absent from his residence etc. He has further observed that in this case there is nothing on record to prove that the service of notice u/s 153A or u/s 142(1) was made by post or through process server. Accordingly, the Commissioner of Income Tax(Appeals) has held that the Assessing Officer's action of exclusive mode of service by affixation is not in accordance with the provisions of sec. 282 r.w.r 17 of order No.V of Code of Civil Procedure, 1908. 6.2. The ld DR has produced before us the original records along with the copies of notice dated 13.8.2007 sent through registered post. He has also filed the notice dated 22.10.2008 sent to ShriS Ramakant, Official Liquidator of the assessee as well as the reply of the official liquidator of the assessee dated 11.12.2008 whereby the notice issued by the Assessing Officer u/s 142(1) has been duly acknowledged by the official liquidator. 6.3. Prima facie, it appears that the Assessing Officer issued the notice to the assessee through registered post and also issued notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above 2. On the Facts and circumstances of the case and in Law the Ld. Commissioner of Income Tax (Appeal) erred in confirming the addition of Rs. 28,43,033 u/s. 41(1) of Income Tax Act. 3. On the Facts and circumstances of the case and in Law the Ld. ACIT as well as Commissioner of Income Tax (A) erred in holding that the loose paper found from third party as per Annexure All pertaining to the appellant company and failed to appreciate the fact that nowhere in the said loose paper the name of the appellant company is appearing. 4. On the Facts and circumstances of the case and in Law the Ld. ACIT as well Commissioner of Income Tax (A) erred in relying on the loose papers found from the third party and without recording any reasons, the Ld. ACIT erred in holding that the transactions appearing in the said loose papers is pertaining to the appellant. 11. We have heard the ld AR as well as the ld DR and considered the relevant material on record. It is pertinent to note that the Commissioner of Income Tax(Appeals) has decided the issue of validity of notice u/s 153A and u/s 142(1) in favour of the assessee in para 4.2 as under: "4.2 In ground of appeal No.3, the appellant h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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