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TMI Blog2019 (9) TMI 1201X X X X Extracts X X X X X X X X Extracts X X X X ..... he proviso to section 143(2) of the Act and, therefore, the assessment order is illegal, unjustified and void ab initio. 2. The Ld. AR at the outset, submitted that assessee in this case has been assessed by the Assessing Officer, Circle-47(1), New Delhi who is the Assessing Officer of the assessee and who has not issued and served the statutory notice u/s 143(2) of the Act. The Ld. AR submitted that during the course of assessment proceedings itself, the assessee had objected to the assessment proceedings being without statutory notice u/s 143(2) and had filed affidavit before the Assessing Officer claiming therein that no notice u/s 143(2) was served and in this respect our attention was invited to page 3 of the assessment order where the Assessing Officer himself has reproduced the affidavit filed by the assessee. It was submitted that the Assessing Officer claimed that notice u/s 143(2) was duly issued and was served upon the assessee and he has scanned the receipt of the speed post along with tracking history of the envelope containing notice and has reproduced the same in the assessment order itself. The Ld. AR submitted that the address mentioned in the notice is B-37, Maha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court has clearly held that in absence of service of notice u/s 143(2) of the Act, the assessment becomes null and void. It was submitted that Hon'ble Supreme Court even dealt with the provisions of section 292BB and has held that even section 292BB cannot cure the defect of not serving of notice u/s 143(2) of the Act. It was submitted that in the present case, the assessee before the Assessing Officer itself had objected to the assessment proceedings, because of non-service of notice and therefore, section 292BB is also not applicable to the assessee. 5. Without prejudice, it was argued that the notice issued by the Assessing Officer of Ward 34(1) u/s 143(2) was not issued by the jurisdictional Assessing Officer. It was submitted that official address of assessee is 1705, 3rd Floor, Onkar Bhawan, Bhagirath Place, Delhi- 110006 and jurisdiction of which lies with Circle 47(1), New Delhi and the jurisdiction at the time of issuance of notice also lied with such Circle 47(1) and our attention was invited to copy of jurisdiction chart extracted from the website of Income Tax Department placed at paper book page no. 301 to 327. It was submitted that the Assessing Officer of Circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and liable to be quashed. In this respect, reliance was placed on the following cases:- i. Shri Harvinder Singh Jaggi vs ACIT in ITA No.672/Del/2013 ii. KIE Infrastructures & Projects (P.) Ltd. vs ITO in IT Appeal No.23(Del) of 2012. iii. Cabbana Infrastructure Pvt. Ltd. vs DCIT (ITA No.183 and 526/Asr./2017). iv. Tata Sons Ltd. vs ACIT (ITA No.4497 and 4542/Mum/2005) (Mum. Trib.) 8. The Ld. DR on the other hand, vehemently argued that the arguments raised by the Ld. AR are baseless and are aimed at depriving the Revenue of its legitimate share. The Ld. DR filed a copy of letter written by the Assessing Officer, Circle 47(1) and also stated that complete assessment record was available with him. The Ld. DR filed a print out of PAN directory showing the address of the assessee and submitted that while filing PAN application, the assessee duly mentioned its address as B-37, Maharana Pratap Enclave, Pitampura Delhi-110034 and therefore as per the PAN records, notice u/s 143(2) was generated by the Assessing Officer where the PAN of the assessee lied which in the present case was Assessing Officer Circle-34(1). Inviting our attention to the copy of notice, the Ld. AR submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee obtained his PAN number by stating residential address as B-37, Maharana Pratap Enclave, Pitampura Delhi-110034. Print out of PAN directory showing the address and PAN number of the assessee is placed in page-4 of paper book filed by Revenue. Further, it is also correct that the assessee filed his return of income by stating therein address as 1705, 3rd Floor, Onkar Bhawan, Bhagirath Place, Delhi-110006, therefore, it is an undisputed fact that there is difference between the address mentioned in PAN data base as well as in the return of income filed by assessee. As per jurisdiction chart of Income Tax Department in Delhi, extracted from the website of Income Tax Department, placed at page book page 301 to 327, the jurisdiction of assessee as per his address in PAN application is with Assessing Officer Ward 39(1). The jurisdiction of the Assessing Officer, as per the address mentioned in the return of income is with Assessing Officer Circle No.47(1) who has passed the assessment order. The notice issued u/s 143(2) has been issued by the Assessing Officer Circle 34(1) who is neither the Assessing Officer of assessee on the basis of address in PAN application nor is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 shown to the Court which obliges the Assessee to ensure that his changed address is entered in the PAN Data Base failing which he is precluded from insisting on the notice under Section 148 being issued to him at the known address and being served upon him. In the present case, on facts, it is not in dispute that the AO was aware of the change of address of the Assessee and yet the notice under Section 148 of the Act was issued at the older address. 11. Mr. Sahni submitted that the order of the CIT (A) notes the fact that a photocopy of the notice was given to the Assessee during the reassessment proceedings and that by itself should constitute sufficient service of notice on the Assessee. In light of the law explained by the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... memo dated 20.08.2015, a copy of which is placed at paper book Page 3. Therefore from the above facts and circumstances, it become apparent that the first Assessing Officer who issued notice on 30.09.2014 had no jurisdiction to assess the assessee and, therefore, he transferred the case to DCIT-2, Kanpur who though had jurisdiction to assess the assessee but issued notice u/s 143(2) only on 07.09.2015 by which date period for issuance of notice had expired. We further find that no order u/s 127 of the Act was passed by the Assessing Officer to transfer the case from Kanpur-4 to Kanpur-2. The Assessing Officer who had jurisdiction to assess the assessee issued notice u/s 143(2) only on 07.09.2015 which was beyond the prescribed time limit for issuance of such notice. Therefore, the notice issued u/s 143(2) by DCIT, Kanpur-2 beyond the statutory period of time is without jurisdiction and therefore, any order passed in consequence of such notice is also liable to be quashed. Therefore, we are in agreement with the argument of Ld. AR. Accordingly, additional grounds of appeal 5 to 8 are allowed. Since we have decided the legal issues, in favour of assessee the grounds on merits of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned the name of the assessee without its address. Consequently, it is quite possible that the notice may have been sent to the assessee at some wrong or even some incomplete address. However, it is not necessary for us to go into this question at all because the assessee had filed an affidavit stating that it had not received the notice and the Tribunal rightly held that under these circumstances, the burden was upon the appellant to prove that notice was served upon the assessee within the prescribed time. The appellant had failed to prove its case in this regard." The above case squarely applies to the facts of the instant case. In the instant case also, there is no reason to believe that the notice was sent to the assessee because the postal receipt showingthat an envelope was sent by speed post merely contained the name of the assessee without its address. Consequently, it is quite possible that the notice may have been sent to the assessee at some wrong or even some incomplete address. The assessee has filed an affidavit stating that he had not received the notice. Hence, applying the ratio, the notice u/s 143(2) is void. Therefore, on this ground also the assessee succ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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