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TMI Blog2015 (6) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... ied. 4. That the Ld. CIT(A) eared in law not considering the remand report send by AO in response of letter dated 07/12/2012 & rejected the application u/r 46A of Income Tax Act 1961 5. The Ld CIT (A) erred in facts and in law keeping the following additions as it is without giving any opportunity of being heard:- i. That the Ld. CIT(A) erred in facts & in law by disallowing the bad debts. ii. That the Ld. CIT(A) erred in facts & in law by rejecting the claim of loss of goods in transit & Business damage. iii. That the CIT(A) erred in facts and in law by rejecting claim discount of the part expenses. iv. That the Ld. CIT (A) erred in facts and in law by upholding the addition made u/s 68 of Income Tax Act by way of rejecting the claim of 1,39,30,653/- v. That the CIT(A) erred in facts and in law by rejecting the claim of assessee towards service charges. vi. That the CIT (A) erred in facts and in law by rejecting the claim of Interest expenses. 6 . The CIT (A) erred in facts and in law while deciding the appeal, without invoking the power given in section 250 (4) of income tax Act 1961 which ultimately leads to hard ship on the assessee. 7. That The appellant craves, leav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em & in the end both parties filed various court cases against each other . In between Nandita Sinha was removed from Directorship of the company by majority shareholder Sh. Sanjay Bansal vide notice to Nandita dated 29/06/2006, requisition for calling Extraordinary GM dated 08/06/2006 & also vide notice of Extra OGM dated 24/07/2006. Later on, on 04/12/2009 a decree of divorce by mutual consent bearing no. HMA 197 of 2009 was allowed by the court ADJ Ld. Ms. Aditi Chaudhary on the basis of settlement agreement dated 02/12/2009 between Sh. Sanjay Bansal, Mrs. Nandita & the assessee company, through its share holders. A petition was filed on 23/12/2009 & on 03/06/2010 Judgment was passed by AOJ (Central)-04 Dr. Archana Sinha & marriage was mutually dissolved. As per the settlement, the control of the company was handed back to Nandita by way of transfer of shares & Mr. Sanjay Bansal Resigned from Directorship of the company on 03/06/2010 itself along with his entire team. Copy of Form 32 intimation of resignation to ROC is attached. But in fact a due diligence of actual handing over of all documents was not done at that time. During the assessment proceedings, assessee company ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A). After considering the evidence furnished, AO commented in the said remand report dated 27/12/2012 that additional evidence may be accepted. Despite of recommendation of the AO in remand report to accept the additional evidence, CIT (A) has chosen to reject the application of additional evidence ulr 46A without assigning any reason & without providing an opportunity of being heard which is bad in law. The copy of remand report was not provided to assessee & same was obtained by assessee through the record file of the assessment as certified true copy. This point may be dealt in detail on second ground of appeal separately. Since the remand report dated 27/12/2012 was silent on the issue of service of notice uls 143(2) of income tax Act, CIT(A) written a second letter to the AO dated 16/01/2013, asking again to AO to comment about the service of notice uls 143(2) along with the proof of service. In response of this letter, AO send a reply dated 28/01/2013 along with copy of notice dated 18/09/2009 send through speed post dispatch receipt dated 22/09/2009 affixed pasted on the said notice as proof of dispatch. CIT(A) on 30/01/2013, handed over the copy of remand report date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) on following grounds:- (a) No opportunity was provided to rebut the finding of the AO otherwise all the information of change of address in PAN data base would have been furnished to (b) CIT(A) has erred is mentioning in para 4.3 of page 8 of order that the AO send the notice on the address available to him. In fact Return of income was filed from the new address. More over the address in PAN data was changed even before the closing of FY relevant to AY 2008-2009. Assessee was filing its TDS return with the department from Second Qr. of 2007-2008 & onward from new address. Therefore the new address was very much available with AO but AO chosen to send the notice at the old address for the reason best known to him. In fact assessee inspected the record file of assessment vide receipt no. 9708 dated 17/04/2013 (page 76(i) & 77(i)) & obtain the copies of following:- * On 05/03.2010 the return of AY 2008-2009 was processed uls 143(1)(a) as per this intimation the address of the assessee is the new address. * On 07/04/2010 a notice u/s 142(1) on which typed address is D-5 Green park Extension New Delhi & hand written address is New address which seems to be after thought as this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imit the assessment order passed would be null and void. 2. CIT Vs. Mascomptel India Ltd. In ITA 11/2012 dated 04/0112012 of Delhi High Court. The fact of the case are similar to our facts. In this case also Court relied on CIT V. Lunar Diamonds Ltd. (2006) 281 ITR 1 (Delhi). 3. CIT Vs. Vardhman Estate P. Ltd. (2006) 287 ITR 368 ( Del) it was held that the date of dispatch of notice cannot be the deemed date of service of notice. Notice u/s 143(2) having been served on the assessee through speed post after the expiry of the prescribed time limit, the service of notice was not effected in time. 4. The similar view was taken by Gurajat High Court in DCIT V. Mahi Vally Hotels & resorts ( 2006) 287 ITR 360 ( Guj). From the above said case laws it can be seen that no assessment u/s 143(3) can be said to have validly made where notice u/s 143(2) is not served or where such notice is served beyond the prescribed period or improperly served. The consequences flowing from such non / belated / improper services of notice are that the assessment so made become void ab initio. Effect of Section 292BB of Income Tax Act PI. refer page no. 2 para 2 of assessment order of AO in which AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.1.1. Secondly, the AO had issued intimation u/s. 143(1) of the Act dated 5.3.2010 to the assessee on the correct address i.e. 118-E, Neb Sarai, IGNOU Road, New Delhi which the assessee has attached in its Paper Book at page 78 meaning thereby the AO is in possession of correct address of the assessee and has not issued notice u/s. 143(2) of the Act to the assessee on the correct address. 7.1.2 We find that the assessee has also filed its objections dated 10.5.2010 before the AO which is at page no. 55 of the Paper Book for non-service of statutory notice u/s. 143(2) of the Act. Assessee has also given intimation dated 13.5.2010 to the Ld. Commissioner of Income Tax-VI regarding non-service of statutory notice u/s. 143(2) of the Act, but AO as well as Ld. CIT has not taken any action on the same. Ld. First Appellate Authority has passed the impugned order without appreciating the facts and record of the case, which is not sustainable in the eyes of law. 7.1.3 Thirdly, we also find that at Page 79 of the Paper Book filed by the assessee that notice u/s. 143(1) of the IT. Act was also issued to the assessee directing to attend the office of the AO for 30.4.2010 on the old address ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state P. Ltd. (2006) 287 ITR 368 (Del) it was held that the date of dispatch of notice cannot be the deemed date of service of notice. Notice u/s 143(2) having been served on the assessee through speed post after the expiry of the prescribed time limit, the service of notice was not effected in time. 5. The similar view was taken by Gurajat High Court in DCIT V. Mahi Vally Hotels & resorts ( 2006) 287 ITR 360 ( Guj). 7.2 From the above said case laws, it can be seen that no assessment u/s 143(3) can be said to have validly made where notice u/s 143(2) is not served or where such notice is served beyond the prescribed period or improperly served. The consequences flowing from such non / belated / improper services of notice are that the assessment so made become void ab initio. 8. In the background of the aforesaid discussions and precedents relied upon, we are of the considered view that the AO has not issued any notice u/s 143(2) of the I.T. Act to the assessee. During the entire assessment proceedings, the assessment order in dispute is invalid, void abnitio and against the provisions of the law and the impugned order is not sustainable in the eyes of law and hence, we cancel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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