9911796707
TMI Blog2016 (3) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... notice u/w 143(2) of the Act was served upon the assessee which a mandatory conditions for valid scrutiny assessment u/s 143(3) of the Act. Therefore, impugned assessment order dated 28.12.2011 is quashed being bad in law and void ab initio. - Decided in favour of assessee - ITA No. 884/Del./2013, C.O. No. 86/Del/2013 - - - Dated:- 18-2-2016 - Sri C.M.Garg, JM AND Sri O.P. Kant, AM For The Assessee : Sh. Pratiyush Jain, CA For The Revenue : Smt. Anima Barnwal, Sr. DR ORDER PER C.M.Garg, J.M. Above captioned appeal of the Revenue as well as cross objection of the assessee have been preferred against the order of the Commissioner of Income Tax (Appeals) Muzaffarnagar dated 01.11.2012 in appeal no. 284/11-12/MZR fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a request that if the case was considered by the first appellate authority on meri ts of additions made then he verbally submitted not to press the relevant ground no. 5 and the same was dismissed. The ld. AR vehemently contended that when the CIT(A) granted relief to the assessee on merits and the revenue is not accepting the same and further challenging the conclusion by way of filing appeal before the Tribunal then the assessee has no alternate but to re-agitate the legal objection by way of cross objection which was posed before the CIT(A) as ground no. 5. 5. On carefully consideration of above rival submissions of both the sides, we are of the considered view that the assessee did not press legal ground no. 5 before CIT(A) to narro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut not accepting that the notice was served on the assessee on 31.8.2010 then no sufficient time was given to the assessee for submitting his reply therefore it is a clear violation of principles of natural justice by the AO. For this proposition the Ld. AR to support has placed reliance on the following decisions of Hon ble High Court and Tribunal (i) Munna Lal Murlidhar vs. CIT reported as 79 ITR 540 (All.) (ii) M. Mohd. Ishaq vs. CIT reported as 27 ITR 510 (Punjab). 7. On replying to the above, Ld. DR submitted that the undisputedly and admittedly the notice was sent to the assessee through speed post under Article No. EU41939695IN on 30.8.2010 on the address Mohalla Khanqua Shareef, Ambeta Peer, Saharanpur . In this situation compli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage, it is pertinent to take cognizance of the fact informed by the Sr. Post Master, Saharanpur to the ITO/AO by letter dated 7.11.2011 wherein it was informed to the AO that speed post under receipt has not been received to the post office for delivery. When the envelope containing notice u/s 143(2) of the Act issued against the assessee was not received by the office concern for service upon the assessee then it cannot be presumed that the same was validly served upon the assessee. Per contra, under above noted facts and circumstances it can safely be presumed that the revenue department could not establish the very fact of valid service of notice upon the assessee u/s 143(2) of the Act within the prescribed limit mandated by proviso to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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