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TMI Blog2017 (1) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri A. T. Varkey, JM And Dr. A. L. Saini, AM Revenue by : Shri Rajat Kumar Kureel, JCIT Sr. DR Assessee by : Shri M.D.Shah, AR ORDER Per Dr. Arjun Lal Saini, AM The captioned appeal filed by the assessee, pertaining to the Assessment Year 2007-2008, is directed against the order passed by ld. Commissioner of Income Tax (Appeals)-14, Kolkata, in Appeal No.79/CIT(A)-14/Wd-46(3)/12-13, dated 13.03.2015, which in turn arises out of an order passed by the Assessing Officer (AO) Under Section 143(3) of the Income Tax Act 1961, (in short the Act ), dated 31.12.2009. 2. Brief facts of the case qua the assessee are that the assessee is an individual, engaged in the business of trading of cloths. Assessee filed his return of income on 29.10.2007 declaring total income of ₹ 2,06,368/-. The case of the assessee was selected for scrutiny and statutory notice u/s.143(2) was issued. Thereafter the AO framed the assessment by making various additions. 3. Aggrieved from the order of ld. AO, the assessee filed an appeal before the ld. CIT(A), who has also confirmed the additions made by the AO, by observing the followings :- 5.1.3 As regards the legality of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the letter was not served upon the assessee since the assessee was ignored to receive the same. The departmental Notice Server also mentioned the same. In view of the scenario it is clearly reflected that the proceedings does not appear to have cast an impact on the assessee for whom it lost its importance and significance within the frame work of the Act . The Assessing Officer admitted that the said notice under sec. 142(1) of the Act was not served. But, here again, he has not recorded any categorical finding that the assessee refused to receive the notice to entitle him to complete the assessment without providing another opportunity to the assessee. He has not followed other modes of service of notice under sec. 142(1) even if the earlier notices were deliberately ignored. In any case, this is a case where the Assessing Officer ought to have followed the first proviso to Section 144, where it is laid down that such opportunity shall be given by the Assessing Officer by serving a notice calling upon the assessee to show cause, on a date and time to be specified in the notice, why the assessment should not be completed to the best of his judgment . Thus, from the facts, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t proper appreciation of the facts and material placed on record. Therefore, the same is liable to be deleted. Coming to the disallowance on account of personal use of telephone at ₹ 9671/-, in my view, looking to the extent of the business, the expenditure as claimed by the assessee could not be held to unjustified or unwarranted. In any case, the additions made without application of mind and without brining any cogent material on record or comparative study of past records, even if it is a best judgment, do not stand to the test of law. 5.1.6 In view of the foregoing facts and circumstances of the case, the assessment is annulled. The two grounds of appeal are accordingly allowed. 4. Not being satisfied with the order of ld. CIT(A), the Revenue is in further appeal before us and has taken the following grounds of appeal :- 1. that the Ld. CIT(A) erred in annulling the assessment without appreciating the fact that the assessment order was made as per law. 2. that the Ld. CIT(A) erred in rendering the assessment order void ab initio although sufficient opportunity were given to the assessee. 3. that the Ld. CIT(A) erred in holding that the additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice u/s.143(2) of the Act. If the statutory notice u/s.143(2) has not been served on the assessee then the AO does not have jurisdiction to make assessment. Ld. AR for the assessee has also submitted before us the affidavit submitted by the assessee before the ld. CIT(A) :- AFFIDAVIT I, RAMANAND KEDIA, son of SRI BAJRANGLAL KEDIA, aged about 57 years, at present resident at 108/1/1/1, Adinath Apartment, G.T.Road (North), Salkia, Howrah-711106, do hereby solemnly declare and affirm as under :- 1. THAT, in the Page 1 of true copy of purported Assessment Order for A.Y.2007-08 handed over to me on 21.09.2012, the Assessing Officer noted as under :- In compliance to the said notice a letter was received from the assessee reasoning for non-appearance on the said fixed for hearing 2. THAT, the contents of the above observation, the Assessing Officer is not correct inasmuch as I did not sign any letter addressing the Assessing Officer in respect of adjournment of hearing and I did not receive any notice of hearing at all. 3. THAT, further the question of engaging any authorized representative on my behalf for representation of my case before the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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