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TMI Blog2019 (11) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... stated hereinabove. In the case of CIT vs. Abacus Distribution Systems (India) (P.) Ltd. [ 2017 (2) TMI 582 - BOMBAY HIGH COURT] has held that where the notice u/s 143(2) has not been served at the correct address then the assessment proceedings concluded on the basis of invalid notice is void. Similarly, in the case of CIT vs. Laxman Das Khandelwal [ 2019 (8) TMI 660 - SUPREME COURT] has held that no notice u/s 143(2) was ever issued by the Department, therefore, in the light of judgement referred to above the assessment proceedings sans service of notice u/s 143(2) of the Act are invalid and accordingly quashed. - ITA No.5960/M/2018 - - - Dated:- 31-10-2019 - Shri Vikas Awasthy, Judicial Member And Shri Rajesh Kumar, Accountant Member For the Assessee : Shri Jitendra Sanghavi, A.R., Shri Amit Khatiwala, A.R. For the Revenue : Shri R. Bhoopathi, D.R. ORDER PER RAJESH KUMAR, ACCOUNTANT MEMBER: The present appeal has been preferred by the assessee against the order dated 21.08.2018 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Ld. A.R. submitted that this is undisputed that notice has not been served on the assessee. During the course of proceedings before the Tribunal, the AR drew our attention to the RTl reply received by the appellant from the Assessing Officer which is extracted is as under: - Sr.No Information required Reply 8(ii) Was the assessment order u/s. 143(3) dated 31.3.2005 dispatched at the address mentioned at Sr.No.7? If yes, whether the same is delivered or returned unserved? If served, provide copy of the acknowledgment of service. Yes, the assessment order was despatched at the address mentioned at Sr.No.7 and it was retuned unserved. The ld AR submitted that it is very clear from the Assessing Officer's response to the query raised about the address at which the assessment order was dispatched wherein he has acknowledged that the assessment order was dispatched to the address which was not the appellant's address and also that address was not mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended that it is very clear that all the relevant details were available in the file of Assessing Officer with respect to the matter on hand and the CIT(A), instead of calling for the records from Assessing Officer to verify the facts of the case and the claim of the appellant, has chosen to make undue harsh comments on the attitude of the appellant and also to allege that the appellant has tried to hoodwink the appellate procedure without any valid reasons. Such observations and comments by the CIT(A) in his order were totally unwarranted and uncalled for. The ld AR argued that it quite apparent from the assessment records as brought to forth by the RTI queries raised by the appellant that the original assessment order u/s.143(3) dated 31.3.2005 was not served on the appellant and the same was dispatched to a wrong address. Further, the true copy of the assessment order certified by the ITO, Ward 16(1)(1) on 29.9.2017 was dispatched on 9.10.2017 and received by the appellant first time on 12.10.2017. The appellant filed an appeal against the said order before the C!T{A) on 9.11.2017 which is within the time limit prescribed for filing the appeal. The CIT(A) has therefore wrongly d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has properly been issued but sent on an address which was different than the address mentioned on the income tax return. 7. After hearing both the parties and perusing the material on record, we observe that the undisputed facts are that the notice under section 143(2) was not served on the assessee as is apparent from the reply of the AO in response to the RTI application dated 05.10.2018, we observe from the perusal of the said application that the notice has not been served on the assessee. In our opinion, the non service of notice is factual and serous defects in the framing of the assessment and renders the assessment proceedings as well as the consequent assessment order as null and void. The ld CIT(A) instead of finding the truth chose to dismiss the appeal even without verifying the facts from assessment records. In the present case before us the AO admitted to have not served the notice under section 143(2) on the assessee and in such a scenario we are left with no option except to quash the assessment order. The case of the assessee is supported by a series of decisions as stated hereinabove. In the case of CIT vs. Abacus Distribution Systems (India) (P.) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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