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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 ..... me of the assessee. Therefore, on this ground also the assessee succeeds as in this case also the service of notice was not proper. - ITA No.1184/DEL/2019 - - - Dated:- 26-9-2019 - Shri T.S. Kapoor, Accountant Member, And Shri Sudhanshu Srivastava, Judicial Member For the Appellant : Shri Ved Jain, Shri Akshit Goeal Shri Nishchay Kantoar For the Respondent : Shri Surendra Pal-Sr. DR ORDER PER T.S. KAPOOR, ACCOUNTANT MEMBER This appeal has been filed by the assessee against the order of the Ld. CIT(A)-16, New Delhi, dated 18/12/2018, for Assessment Year 2014-15. The assessee has taken a number of grounds both on legal issues and on merits of the case. However, during the course of proceedings before us, only ground No.1, which is on legal issue of non-service of notice u/s 143(2) of the Income Tax Act, 1961 (hereinafter the Act ) was argued which for the sake of completeness is reproduced below. That no notice u/s 143(2), of the Income Tax Act, 1961, issued by the Assessing Officer having jurisdiction over the assessee, was served upon the assessee on o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein, it has been held that if there are discrepancies in the address stated in the notice, envelope containing notice and the address noted by the Post Officer, then there cannot be any presumption as to the valid service of notice. 4. The Ld. AR further placed his reliance on judgments of Hon ble Delhi High Court in the case of CIT vs Lunar Diamonds Ltd. (ITA No.62 of 2005), wherein, the Hon ble High Court under similar facts and circumstances had dismissed the appeal of the Revenue. It was submitted that in that case also, the assessee had filed affidavit regarding non-receipt of notice u/s 143(2) and there was difference in the address on the receipt issued by post office and therefore, the Hon ble Tribunal had allowed the appeal of the assessee which the Hon ble High Court had upheld. The Ld. AR also relied upon a number of case laws as listed in the brief synopsis filed by him. The Ld. AR further submitted that the in view of the above facts and circumstances, the assessee was not served noticed u/s 143(2) of the Act and therefore, any assessment order passed without service of notice u/s 143(2) is null and void as held by the Hon ble Supreme Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each of section 124(3) of the Act. As regards the case laws relied upon by the Ld. CIT(A), it was submitted that the these are distinguishable on facts as in the case of Mega Corporation Ltd. in ITA No.128/2016 and CIT vs Kapil Jain in ITA No.613 of 2009 and Abhishek Jain vs ITO 94 taxmann.com 355 (Del.) notice had been served upon the assessee and assessee had failed to raise the objections within the stipulated period prescribed u/s 124(3) of the Act, whereas, in the present case no notice was served upon the assessee as already demonstrated. 7. The Ld. AR, further, argued that no order u/s 127 for transfer of case from one Assessing Officer to another Assessing Officer was passed, whereas the Commissioner of both the Assessing Officer are different. It was submitted that such order has to be passed by Chief Commissioner or Commissioner from whose jurisdiction, the case is to be transferred. It was submitted that Circle-34 and Circle 47 are under the jurisdiction of different CCITs, therefore, the order u/s 127 was mandatory. The Ld. AR further argued that the Chief Commissioner of Circle 34 also did not pass any order u/s 127 to transfer the case back to the Cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i High Court in the case of Abhishek Jain vs ITO (2018) 405 ITR 1, where the Hon ble High Court has held that sub-section-3 of section 124 clearly states that no person can call in question jurisdiction of an Assessing Officer in case of non-compliance and/or after the stipulated in clause (a) and (b), and therefore, it was argued that at this stage, the arguments of the assessee cannot be accepted and it was therefore argued that the Ld. CIT(A) has rightly dismissed this grounds of appeal. 9. The Ld. AR in this rejoinder submitted that the assessee is not under any obligation to inform the Assessing Officer regarding change of address and in this respect relied upon the judgment of Hon ble Delhi High Court in the case of Pr. CIT vs Atlanta Capital Pvt. Ltd. and filed a copy of the decision. The Ld. AR submitted that the arguments of the ld. DR that notice u/s 143(2) is generated by the Assessing Officer where the PAN number lies also goes in favour of the assessee as the Assessing Officer while issuing notice u/s 143(2) has not applied his mind whereas the section itself requires that the Assessing Officer should have been satisfied before issuing of notice u/s 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer for change of address also does not hold good in view of the decision of the Hon ble Delhi High Court in the case of Pr. CIT vs Atlanta Capital Pvt. Ltd., where, the Hon ble Court has held as under:- 7. On the facts of the present case, it is seen that notice dated 27th March 2008 under Section 148 of the Act was issued to the Assessee by the Assessing Officer ('AO') at the address at B-231, Okhla Industrial Area, Phase-I, New Delhi. Admittedly, the Assessee had shifted from that address with effect from 1st February 2005 to a new address at B-115, Sarvodaya Enclave, New Delhi. For AY 2005-06 and the subsequent AYs, the Assessee disclosed his address as B-115, Sarvodaya Enclave, New Delhi. Even the AO had sent letters to the Assessee at the same address on 8 th August 2007. The intimation under Section 143(1) of the Act dated 25 th January 2008 for AY 2006-07 was also sent by the AO to the Assessee at the same changed address i.e. B-115, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise, we have observed that the Assessing Officer of Circle 34(1) did not have jurisdiction over the assessee neither on the basis of residential address nor on the basis of business address. Therefore, the notice issued by Assessing Officer of Circle-34(1) cannot be said to be legal as it has been issued by a non jurisdictional Assessing Officer and that too without any order u/s 127 of the Act. The Hon ble Delhi ITAT in the case of KIE Infrastructures Projects (P.) Ltd. vs ITO in IT Appeal No.23(Del) of 2012 has held as under:- Where in case of assessee, Assessing Officer at ward 4 Agra himself transferred jurisdiction of case to Assessing Officer at ward 5(3), New Delhi and there being no transfer order passed by Chief Commissioner or Commissioner, it was a case of violation of provisions of section 127 and, therefore, impugned assessment order passed by Assessing Officer, ward 5(3), New Delhi was to be regarded as void ab intio. 13. Similarly, Lucknow Bench of the Tribunal in the case of M/s Bajrang Bali Industries vs ACIT in ITA No.724/LKW/2017, order dated 30/11/2018 has held as under:- 6. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anjeev Goel with Pin Code 110006. There is difference between the address mentioned in the notice which is Pin Code 110034 and tracking report which is 110006 and also there is difference in the name mentioned in the notice which is Rajeev Goel and that mentioned in the tracking report which is Ranjeev Goel. The copy of tracking report is placed at paper book page 254. Therefore, in view of these facts, the notice, even if presumed to be by jurisdictional Assessing Officer has not been served properly. The Hon ble Delhi High Court in the case of CIT vs Lunar Diamonds Ltd. (281 ITR 1) has dealt with similar situation. The facts of the case and its decision is reproduced below:- . On appeal before the CIT(A), it was contended by the assessee that it had not received under section 143(2) of the Income Tax Act, 1961 allegedly sent by registered post. An affidavit to this effect was filed. It was contended that the receipt issued by the post office did not bear the address of the assessee but only its name. It was, therefore, submitted that there was a possibility that the correct address of the assessee might not have been written on the envelope and, therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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