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TMI Blog2018 (7) TMI 1553X X X X Extracts X X X X X X X X Extracts X X X X ..... d did not involve any delay. Before parting, we may herein observe that as observed by us hereinabove, no material had been placed on record by the ld. D.R which could have persuaded us to conclude that the order passed by the A.O under Sec. 144 r.w.s. 263, dated 30.10.2006 was earlier validly served on the assessee. Restore the matter to the file of the CIT(A) with a direction to readjudicate the issue on merits. - Appeal of the assessee is allowed for statistical purposes. - ITA No. 6340/Mum/2014 - - - Dated:- 23-7-2018 - SHRI R. C. SHARMA, AM AND SHRI RAVISH SOOD, JM For The Appellant : Shri Rajesh S. Shah, A.R For The Respondent : Shri Suman Kumar, D.R ORDER PER RAVISH SOOD, JUDICIAL MEMBER: The present appeal filed by the assessee is directed against the order passed by the CIT(A)-21, Mumbai, dated 24.06.2014, which in itself arises from the order passed by the A.O under Sec.144 r.w.s. 263 of the Income tax Act, 1961 (for short Act ), dated 30.10.2006 for A.Y 2001-02. The assessee has assailed the order of the CIT(A) by raising before us the following grounds of appeal: Under the facts and circumstances of the ease CIT (A) has er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the assessment order dated 31.12.2003 by holding the same as erroneous and prejudicial to the interest of the revenue. The CIT directed the A.O to make a fresh assessment after allowing the assessee a proper opportunity of being heard. 3. On the basis of the directions of the CIT the A.O issued a notice under Sec.143(2) and 142(1) to the assessee. However, as the assessee failed to comply with the directions of the A.O, thus the latter framed assessment under Sec.144 r.w.s. 263 on the basis of the material available on record. The A.O while framing the assessment observed that the assessee had shown an amount aggregating to ₹ 18,24,500/- as unsecured loans in its balance sheet on 31.03.2001, as under: Particulars Dr. Amount Cr. Amount M/s B.B.G. Builder Dev P. Ltd. 13,90,000.00 Shri Shantilala Maroo 1,00,000.00 Smt. Neema Pagrika 3,00,000.00 Smt. Prem Devi Badala 34,500.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onse to this, the assessee f iled some details and thereaf ter, there was no compliance f rom the assessee. Therefore, af ter giving show cause notice, the assessment u/s. 144 r.w.s.263 was completed on the basis of material available on record. On perusal of details and ledger account, the A.O. f inds that the cash credit appearing in the books of accounts of the assessee is not genuine one and assessee failed to prove the creditworthiness and genuineness of the creditors. Accordingly, ₹ 18.24 lakhs being unexplained cash was added in total income of the assessee and assessment was completed u/s.144 r.w.s. 263 of the I. T. Acton 30.10.2006 raising a demand of ₹ 10,65,458/-. The assessment order alongwith demand notice were duly served on the assessee. 3.2 Now af ter period of 6-7 year Assessee preferred an appeal before your honour and submitted details inform of additional evidence. Af ter going through the said details, the opportunity of hearing had given to the assessee and asked to file required details in support of their contention. In response to this, C.A. Mr. Salil Lodha on behalf of assessee attended and submitted required details and explained the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... good case as the A.O in his remand report had himself admitted that the amount of ₹ 18,24,500/- which was assessed as an unexplained cash credit under Sec.68 in the hands of the assessee pertained to the closing balances of the previous year and no fresh loan was taken by the assessee during the year under consideration. The ld. A.R submitted that the assessee company which was incorporated on 18.01.1995 had its registered office at NH-8, Piparda-Kankoroli, Rajsamand. The ld. A.R further submitted that the assessee had its head office at Badala House, 175/1, Fatehpura, Udaipur and was carrying out its business in Mumbai from 17-1, Mathuradas Colony, Kalina, Santacruz (E). The ld. A.R taking us through the facts of the case (Page 2-6) of APB submitted that the directors of the assessee company were Mr. Sampatlal Badala, Shri Sampat Badala and Smt. Prem Devi Badala (wife of Shri Sampat Badala). It was submitted by the ld. A.R that the aforesaid properties were owned by the directors of the assessee company. Mr. Sampat Badala who owned the property at Mumbai, had allowed an income tax practitioner viz. Mr. N. Shiva Rao who was looking after affairs of the company and filing its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had erred in failing to appreciate that as all the correspondences of the assessee with the CIT-10, Mumbai in the course of the revision proceedings, as well as the order passed by him under Sec.263 clearly mentioned the registered office address of the assessee, viz. NH-8, Piparda-Kankoroli, Rajsamand, Rajasthan, therefore, there was no reason for him to have passed the order under Sec. 144 r.w.s. 263 at the Mumbai address of the assessee company viz. 17-1, Mathuradas Colony, Kalina Santa Cruz (E), Mumbai. In the backdrop of the aforesaid facts, it was submitted by the ld. A.R that as the assessment order was passed on the wrong address, therefore, the same was never communicated to the assessee. The ld. A.R in order to impress upon us that the A.O had passed the order under Sec. 144 r.w.s. 263 at a wrong address, as well as the fact that the revenue was well aware of the fact that the directors of the assessee company viz. Sh. Sampatlal Badala, Sh. Sampat Badala and Smt. Prem Devi Badala were available at the registered office address of the assessee company viz. NH-8, Piparda Rajsamand, Rajasthan, took us through a chart which was filed during the course of the proceedings befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position applied for a copy of the assessment order, which was made available to him on 20.02.2013. The director had further deposed that immediately on obtaining the assessment order an appeal was filed on 06.03.2013 involving no further delay. The ld. A.R in the backdrop of the aforesaid facts submitted that as the original assessment order passed by the A.O under Sec.144 r.w.s 263 on 30.10.2006 was never made available to the assessee company, but rather the same had been delivered only as on 20.02.2013, therefore, the appeal filed by the assessee with the CIT(A) on 06.03.2013 being well within the stipulated time period did not involve any delay. The ld. A.R further submitted that the assessee even otherwise has a good case on merit. It was submitted by the ld. A.R that as admitted by the A.O in his remand report filed with the CIT(A) that the amount of ₹ 18,24,500/- was the opening balance of the outstanding loans and no new loan was taken by the assessee during the year under consideration viz. A.Y 2001-02, therefore, the addition made under Sec. 68 could not be sustained. Per contra, the ld. Departmental Representative (for short D.R ) relied on the order passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... address of the assessee company at NH-8, Piparda Rajsamand, Rajasthan, thus there could be no valid reason on the part of the A.O to have passed the order under Sec. 144 r.w.s 263 at the Mumbai address of the assessee, viz. 17-1, Mathuradas Colony Kalina, Santacruz (E). We thus, are of the considered view that as the A.O had passed the assessment order under Sec. 144 r.w.s. 263 making a wrong mention of the address of the assessee, which as observed by us hereinabove was clearly in contradiction of the address at which the order under Sec.263 was passed by the CIT-10, Mumbai, thus the probability that the assessment order was not served on the directors of the assessee company, in the absence of any material proving to the contrary, cannot be ruled out. We may herein observe that even during the course of the hearing of the appeal before us the ld. D.R had failed to place on record any such material which could conclusively prove to the hilt that the assessment order passed by the A.O under Sec. 144 r.w.s. 263, dated 30.10.2006 was validly served upon the assessee. We are of a strong conviction that in the backdrop of the aforesaid facts it emerges that the assessment order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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