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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 ..... as filed the present appeal against the impugned order dated 06/2/2013 passed by the Ld. Commissioner of Income Tax (Appeals)-19, New Delhi on the following grounds:- 1. The Ld. CIT(A) erred in facts Circumstances of the case in law in holding that the assessment has been framed by valid service of notice u/ s 143(2) of Income Tax Act 1961 do not deserve to be quashed. 2. That The Ld. CIT(A) erred in law, by not providing any opportunity to rebut the remand report of the AO regarding the service of notice u/s 143(2) of income Tax Act 1961. 3. That the Ld CIT (A) erred in facts in law in holding, while disallowing the application u/r 46A of Income Tax Rule that the non of the condition laid down in Rule 46A are satisfied. 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his arguments he filed the written submissions. For the sake of convenience, the Written Submission filed by the Assessee are reproduced hereunder:- The promoters of assessee company Sh. Sanjay Bansal Smt. Nandita Sinha got married on 26/04/1996 thereafter both of them decided to form a company M/s Total Presentation Device Private Limited herein after called the Assessee the said company was formed vide certification of incorporation of ROC dated 02/09/1996 having two share holders subscriber to MOA AOA namely Sh. Sanjay Bansal (having sahre holding of 69.9%) Nandita Sinha (having holding of 30.1 %). After three years of their marriage a dispute erupted between them 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence AR of the company raised the additional ground of non receipt of statutory notice U/S 143(2)(ii) of Income Tax Act 1961 same was again mentioned in letter dated 07/12/2012. On the basis of this additional ground read with an application u/r 46A CIT (A) asked for a remand report from AO vide letter dated 07/12/20 12 on two grounds i.e. Whether the application u/r 46A is acceptable? Comment on service of notice uls 143(2) of Income Tax Act 1961 send the copy of notice with proof of service. In response of this letter, AO asked Assessee company to attend the remand report proceedings assessee accordingly submitted the desired information. AO send a remand report Vide letter dated 27/12/2012 to 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 obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding 31/03/2008 i.e. for AY 2008-2009 was filed on 29103/2009 from the new address, but AO, on 18/09/2009 had chosen to send the notice U/S 143(2) of income tax Act on the old address. Same was accordingly not served on the assessee. Affidavit to this effect can be filed if required by the Hon'ble Bench. More over Your kind attention is invited towards the amendment regarding the change-in-principal place of business in Sales tax department w.e.f 30/06/2007 accordingly assessee filed its TDS return with income tax department for the second quarter of FY 2007-2008 vide receipt no. 010690200168535 form 27A. CIT(A) has erred while dealing the point of non receipt of notice on para 4.2 of page 8 of order of CIT(A) 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 2008-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d assessment. No notice was served on assessee U/S 143(2) on or before 30/09/2009. CIT(A) has relied on a case CIT Vs. Jagat Novel Exhibitors (P) Ltd. (2012) 18 taxmann.com 138 (Delhi). Your kind attention is invited towards the fact that in this case all notices were send on same address which was the correct address. More over provision of section 292B is not overriding the provision of 142(2)(ii) of income Tax Act. More over Assessee places reliance on following cases laws:- 1. CIT VS. Lunar Diamonds Ltd. (2006) 281 ITR 1 (Delhi). In this case jurisdictional High Court held that notice U/S 143(2) must be served on the assessee with in the time stipulated in the proviso. In case the notice was not served within the said time limit 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 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the notice u/s. 143(2) of the Act dated 18.9.2009 for 30.9.2009 has been issued by the AO to the assessee on the address i.e. D-5, Green Park Extension, New Delhi. As discussed above, the assessee filed its return of income for the asstt. year in dispute dated 29.3.2009 by mentioning its address as 118-E, Neb Sarai, New Delhi. In our view AO should have issued notice u/s. 143(2) of the I.T. Act to the assessee on the address mentioned in its return of income for the asstt. year in dispute i.e. 118-E, Neb Sarai, New Delhi. (Page no. 74 of the Paper Book). But as per the record, the AO had issued notice to the assessee u/s. 143(2) of the I.T. Act on the address at D-5, Green Park Extension, New Delhi which is not as per the record available with AO. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Hon ble Supreme Court has held that the issue of notice u/s. 143(2) of the I.T. Act is mandatory and not procedural. If the notice is not served within the prescribed period, the assessment order is invalid. 2. CIT VS. Lunar Diamonds Ltd. (2006) 281 ITR 1 (Delhi). In this case jurisdictional High Court held that notice U/S 143(2) must be served on the assessee with in the time stipulated in the proviso. In case the notice was not served within the said time limit the assessment order passed would be null and void. 3. 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). 4. 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. 5. The similar view was taken by Gurajat High Court in DCIT V. Mahi Vally Hotels resorts ( 2006) 287 ITR 360 ( Guj). ..... X X X X Extracts X X X X X X X X Extracts X X X X
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