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TMI Blog2021 (7) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... er is set aside therefore, all other grounds of assessee s appeal are set aside to the file of Ld.CIT(A) for decision afresh. Appeal of the assessee is allowed for statistical purposes only. - ITA No.1521/Del/2020 - - - Dated:- 30-7-2021 - Shri Kul Bharat, Judicial Member For the Appellant : Sh. Ashok Khandelwal, CA For the Respondent : Sh.Gaurav Pundir, Sr. DR ORDER PER KUL BHARAT, JM : This appeal filed by the assessee for the assessment year 2011-12 is directed against the order of Ld. CIT(A)-33, Delhi dated 07.07.2020. The assessee has raised following grounds of appeal:- 1. That the Notice u/s 148 of I. T. Act 1961 was not served on the appellant in time in accordance with law, the reassessment made consequent thereto was without jurisdiction and liable to be quashed. 2. That the A.O. Delhi usurped the jurisdiction by passing the order without recording reasons resulting in the impugned order being null in the eyes of law. 3. That when the ground for reopening the assessment do not exist any longer after giving relief by the CIT (Appeal), the addition u/s 50C of I.T.Act 1961, which was not part of the reasons to believe, no additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty. However, no evidence in support of investment in House property to qualify for deduction u/s 54 of the Act is submitted. In the absence of evidence in support of deduction claimed u/s 54 of the Act, show cause notice dated- 20.12.2018 is issued to the assessee to show cause as to why the deduction claimed u/s 54 of the Act shall not be disallowed. Instead of filing certain details, as an habit of non-compliance, the CA/AR of the assessee M/s Ashok Khandelwal Associates on 21.12.2018 s requested for obtaining various documents, such as copy of sale deed of property available on record which is sold by the assessee and other documents related to reopening of the case, which are duly provided to them. However, on 21.12.2018 Ashok Kumar Khandelwal Associates through e-mail has again raised certain issues regarding reopening of case. Since, the assessee is habitual of raising objections just to delay and mislead the assessment proceedings; the issues raised this time are not discussed. The same were disposed off several times during the assessment proceedings. However, in response to show cause notice dated-20.12.2018, the assessee has merely stated that practically no time i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by way of speaking order. He submitted that the proceedings is vitiated on account of the fact that firstly, the first notice which was issued by the Assessing Officer, Noida i.e. ITO, Ward-2(4), Noida dated 28.03.2018 was ab-initio without jurisdiction and as such the assessment framed in pursuance to the notice issued by an authority which has no jurisdiction is illegal and such action deserves to be quashed. He submitted that there is no dispute with regard to the fact that the Assessing Officer at Noida issued first notice u/s 148 of the Act and thereafter, the Assessing Officer at Delhi issued another notice u/s 148 of the Act. He submitted that the notice issued by the Assessing Officer u/s 148 of the Act by Assessing Officer at Delhi, firstly it was barred by time and secondly, the notice was issued without recording the reasons. He further submitted that under these facts, the assessment should have been quashed by Ld.CIT(A) however, he chose not to decide the specific issues raised before him. 6. Per contra, Ld. Sr. DR supported the orders of the authorities below and submitted that the assessment was framed by the Assessing Officer who was having jurisdiction. He furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee at the correct address available on record in the copy of sale deed and further notices dated 22.05.2018 and 29.05.2018 having been issued at the correct address of the assessee, which were received and duly replied to. In the present case the A.O. has miserably failed to discharge that onus. The Reassessment proceedings could not be completed by the A.O. without effecting proper service of notice on the Assessee under Section 148 (1) of the Act. The assessment order passed on 24.12.2018 in these circumstances is invalid and is liable to be quashed/cancelled. It is further submitted that the assessee in the present case, having raised an objection regarding the failure by the A. O. to effect service of notice upon her, the main part of Section 292 BB is not attracted. It is submitted that on the facts of the present case it can be seen that since no proper service of notice had been effected under Section 148 (1) of the Act on the Assessee, the reassessment proceedings are liable to be cancelled. In this connection reliance is placed on the decision of Delhi High Court in the case of CIT vs. Chetna Gupta in ITA No. 72 of 2014 dated 15.09.2015 wherein it was held 47. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Income Tax Officer Ward 63(3), New Delhi holds jurisdiction over my case. Details of jurisdiction as per Income Tax Department database is enclosed. Further two notices were issued u/ 142(1) of L T. Act 1961 at this address. The second notice is issued in the name of Smt. Pushpa Sharma. It is submitted that the aforesaid notice has wrongly been served on this address. No such person resides at this address. Notice is being returned in original . A.O. Noida further issued a notice dated 29.05.2018 wherein he mentioned about the sale deed and issue of notice. This was replied to by the assessee as per letter dated 02.07.2018 as under: - Kindly refer to your notice dated 29.05.2018, in connection with re-assessment proceedings undertaken by you in pursuance to notice u/ s 148. In reply it is submitted as under: - The assessee objects the assumption of jurisdiction by you. It is already intimated that the assessee is assessed to tax under PAN AAHPK9178N with Income Tax Officer Ward - 63(3), New Delhi. The Income Tax Officer Ward 63(3), New Delhi holds jurisdiction over the case. Details of jurisdiction as per Income Tax Department database has already been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have transferred the file in February/March to the ITO, New Delhi for taking action required under law including issue of notice u/s 148. Notice dated 06.12.2018 issued by ITO, New Delhi for 12.12.2018 The necessary reply was filed by the assessee as per letter dated 12.12.2018 on 12.12.2018. The assessee filed the return of income on 11.12.2018 under protest giving the details of capital gain on sale of property for ₹ 55,00,000/- and investment of capital gain in the acquisition of another residential property u/s 54 of I. T. Act 1961 and therefore the capital gain was NIL. Further show-cause notice dated 20.12.2018 for 22.12.2018 was issued, which was replied to by the assessee as per letter dated 21.12.2018. When this reply was filed, the assessee was given notice u/s 143(2) dated 21.12.2018 for making compliance for 22.12.2018. After filing the return it was incumbent upon the A. O. to issue notice u/s 143(2) and proper time and sufficient opportunity should have been allowed. To give time for a day is not a sufficient time to make compliance. On 22.12.2018 the assessee filed the reply as per letter dated 21.12.2018 and asked for some time for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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