9911796707
TMI Blog2022 (3) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... viso to 292BB and that there is no contrary evidence submitted to support the claim that the notice u/s.143(2) was not served on the assessee. Appeal of the assessee is dismissed. - ITA No.2659/Bang/2018 - - - Dated:- 25-3-2022 - Shri George George K, Judicial Member And Ms. Padmavathy S, Accountant Member For the Assessee : Shri Shreehari Kutsa, Advocate For the Revenue : Shri Sankar Ganesh D, JCIT(DR) ORDER PER PADMAVATHY S, ACCOUNTANT MEMBER This appeal of the assessee is directed against the order of CIT(A) -7, Bengaluru passed for the asst. year 2013-14 by order dated 10/7/2018. 2. The assessee raised the following grounds before us. 1. The Order of the learned Commissioner passed under section 250 of the Act is opposed to law, equity, weight of evidence, probabilities and the facts and circumstances in the Appellant's case. 2. The Appellant denies itself liable to be assessed to tax on a total income as determined by the learned AG as against the total income as declared by the Appellant on the facts and circumstances of the case. 3. The Commissioner of Income Tax (Appeals) failed to appreciate that the Assessment Proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged at the time of the hearing of the appeal, the Appellant prays that the appeal may be allowed in the interest of justice and equity. 3. During the course of hearing, the Ld.AR pressed only the grounds relating to non-issue of notice u/s 143(2) of the Income Tax Act (the Act) which is adjudicated in the following paragraphs. 4. The brief facts of the case are that the assessee is an individual and filed its return of income on 12/08/2013 declaring total income of ₹ 13,38,560/-. The case was selected for scrutiny whereby the AO completed the asst. u/s 143(3) of the Act determining the total income of ₹ 28,08,560/-. During the course of proceedings, the AO found that the assessee has shown rental income of ₹ 15,04,500/- whereas the rental receipts from Form 26AS is ₹ 36 lakhs. On being confronted by the AO, the assessee filed a letter on 30/03/2016 admitting the error on omission on her part and agreed for addition of the amount of ₹ 21 lakhs to the income of the assessee for the year under consideration. Accordingly, the AO completed the asst. on 30/03/2016 and also initiated penalty proceedings u/s 271(1)(c) of the Act. 5. The assessee pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of notice u/s143(2) and not providing sufficient time to make submissions. The Ld AR further submitted that the objections about the non issuing of notice u/s. 143(2) were raised before the AO vide letter dated 28/03/2016 and 30/03/2016 and hence the provisions of section 292BB of the Act are not applicable as per the proviso to the said section. The Ld AR also submitted that contention of the department about no acknowledgment or Thappal seal in the above letter is something beyond the control of the assessee and hence the same cannot be held against the assessee in the interest of law and principles of natural justice 10. The Ld.DR made detailed written submission which is reproduced below (i) Though the proof of service of notice is not readily available, it cannot be said that the notice was not served. As per system generated trail, notice is generated and date of hearing is given. During the course of hearing the Id. AR argued that such trail will he there for all notices. However it is to be noted that, the format and suhject matter of notice will he system generated. Default date of hearing will generally be 15 days. But, in this case, the notice is dated 03/09/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of non service of notice to take undue advantage of lapse of time to prove the service of notice by way of obtaing the same from postal department or so. (viii) Since assessee has not made any such objections during the course of assessment proceedings, the case clearly falls under the purview of sec.292BB of the I.T.Act. For ease of reference the section and the proviso are reproduced hereunder: 292BB: Where an assessee has appeared in any proceeding or co-operated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was-- (a) not served upon him, or (b) not served upon him in time, or (c) served upon him in an improper manner: Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment. (ix) The Ld. AR is trying to take shelter under the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is a system generated audit trail evidencing that that the notice u/s.143(2) is generated fixing the date of hearing on 12/09/2014. The assessee during the course of hearing had admitted the error of omission and agreed to the addition of the amount of ₹ 21 lakhs to the income of the assessee and also has paid tax on the same. The argument of the Ld DR that there is no noting or mention in the assessment about any objections raised by the assessee about non issue of notice u/s. 143(2) and that in the order sheet signed by the representative agreeing to the addition made, there is no objections raised, merits consideration. Before the Tribunal the Ld AR could not submit any proof for having raised the objections before the completion of the assessment. From the evidences perused there is nothing to prove that the objection were raised before the AO for non issue of notice u/s.143(2) to take shelter under proviso to 292BB and that there is no contrary evidence submitted to support the claim that the notice u/s.143(2) was not served on the assessee. Given this, based on the submissions and evidences produced, we are not in a position to allow this appeal on merits. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
