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2019 (5) TMI 747

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..... iated and is liable to be set aside and quashed - Decided in favour of assessee. - ITA.No.1942/Del./2013, ITA.No.3632/Del./2013 - - - Dated:- 9-5-2019 - Shri Bhavnesh Saini, Judicial Member And Shri O.P. Kant, Accountant Member For the Assessee : Shri Ved Jain, Advocate., Shri Ashish Goyal, C.A. For the Revenue : Smt. Rinku Singh, Sr. D.R. ORDER PER BHAVNESH SAINI, J.M. Both the cross-appeals are directed against the Order of the Ld. CIT(A)XV, New Delhi, Dated 25.03.2013, for the A.Y. 2009-2010. 2. Briefly the facts of the case are that assessee company filed its return of income on 29.09.2009 declaring profit of ₹ 22,71,790/-. The case was selected for scrutiny. The A.O. made certain additions to the returned income and computed the income at ₹ 6.41 crores vide assessment order under section 143(3) Dated 28.12.2011. The assessee challenged the additions before the Ld. CIT(A). The Ld. CIT(A) partly allowed the appeal of assessee. 3. Both the parties are in cross-appeals. 4. We have heard the Learned Representatives o .....

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..... Road, Karol Bagh, New Delhi, within the stipulated period in law and was not time barred. The A.O. attached copy of the application filed by the assessee company for allotment of PAN wherein the above address along with other address at 3, Tansen Marg, Bengali Market, New Delhi was shown as was also shown in the return of income. Copy of the remand report was provided to the assessee for rejoinder. Assessee submitted that the A.O. in the remand report has only referred to address of Gurudwara Road, Karol Bagh and has made no reference to the address of 3, Tansen Marg, Bengali Market, New Delhi, mentioned in the PAN application as for return purposes and as communication address . The assessee company filed copy of the acknowledgment of income tax returns for A.Ys. 2001-2002 to A.Y. 2011-2012 in support of the contention that address in the tax return filed has always been shown as 3, Tansen Marg, Bengali Market, New Delhi . Further, the assessee also filed copies of various documents as evidence in support of its contention that even the A.O, on time to time, had served various notices, the assessment orders of the assessee company for various proceedings on the above referred .....

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..... ompany in its application for PAN as the address for filing the returns and for communication purposes and also in the return of income of the current year. Therefore, while there was infirmity in the aforesaid notice, to the extent it was sent at the other address of the appellant, which was distinct from the returned address, the undisputed fact, as confirmed by the Id. AR, is that the premise of the appellant at Karol Bagh was also in the possession of the appellant during the year and was not let out to any 3rd party during the year. The Ld. AR has got the inspection of the file done and there is no evidence that the said notice was unserved, which is likely, as the appellant was holding possession on the premise at that address. Under these circumstances, the probability of preponderance suggest that there is no reason why the notice sent at the address at Karol Bagh, whose possession was not denied by the appellant, may not have been served on the appellant or any Authorized representative thereof, even though the appellant may have given some other address for return filing purpose. The position would have been different if .....

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..... ), Judgment of Hon ble Delhi High Court in the case of Pr. CIT vs. Jai Shiv Shankar Traders Pvt. Ltd., [2016] 383 ITR 448 (Del.) and Judgment of Hon ble Delhi High Court in the case of Pr. CIT-1 vs. Atlanta Capital Pvt. Ltd., ITA.No.665 of 2015 Dated 21.09.2015. 8. On the other hand, Ld. D.R. relied upon the Order of the Ld. CIT(A) and submitted that notice under section 143(2) was to be generated on the address selected by the assessee for communication in its PAN data and assessee had selected the address at 2659/3, Gurudwara Road, Karol Bagh, New Delhi as address for communication. The assessee did not change the PAN data and that notice sent through speed post never returned back to the A.O. Therefore, there is a presumption that same have been duly served upon the assessee. In support of the contention, the Ld. D.R. filed copy of PAN data and also submitted that refund was also provided at the same address along with intimation under section 143(1) of the I.T. Act, 1961. Copy of the receipt of speed post along with notice under section 143(2) dated 30.08.2000 also placed on record. The Ld. D.R. relied upon Judgments of Hon ble Delhi .....

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..... he findings of the Tribunal that no such notice was prepared and served upon the assessee. In the absence of this mandatory requirement of issuing statutory notice under section 143(2) of the Act, the Tribunal had rightly quashed the assessment as null and void. 9.2. The Hon ble Delhi High Court in the case of Pr. CIT vs. Jai Shiv Shankar Traders Pvt. Ltd., 383 ITR 448 (Del.) and Pr. CIT vs. Silverline 383 ITR 455 held that re-assessment order cannot be passed without service of notice under section 143(2) of the I.T. Act. 9.3. It is not in dispute that notice dated 28.02.2011 under section 143(2) was served upon the assessee which was beyond the above statutory period. The assessee filed objection before A.O. at assessment stage in which assessee denied service of any notice under section 143(2) within the period of limitation. The assessee also pleaded in the reply that in case any other notice have been served in past, such details may be brought on record and provided to the assessee. The assessee also filed affidavit of Shri Rakesh Jain, Managing Director of the assessee company in which the assessee denied service of any notice under section .....

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..... intimation under Section 143(1) of the Act dated 25th January 2008 for AY 2006-07 was also sent by the AO to the Assessee at the same changed address i.e. B-l 15, Sarvodaya Enclave. New Delhi. There is nothing to show that the notice under Section 148 of the Act was in fact issued by the AO showing the aforementioned changed address. 8. It is the contention of Mr. N.P. Sahni, learned Senior Standing counsel for the Revenue, that the notice satisfied the requirement as to limitation under Section 149 (b) of the Act. However, as noted by the ITAT, the notice itself was not issued at the correct address. The fact that the said notice, sent by speed post, was not returned unserved, would be to no avail since the address given in the notice was not the last known address of the Assessee. 9. Mr. Sahni then submitted that it was incumbent on the Assessee to have got his changed address entered in the PAN Data Base failing which the AO would only go by the address given in the record of the relevant AY which in the case is AY 2001-02. 10. The Court is unable to agree with this submission. No provision in the Act has been .....

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