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TMI Blog2017 (11) TMI 1989X X X X Extracts X X X X X X X X Extracts X X X X ..... t issue of notice to acquire jurisdiction to complete the assessment u/s 143(3). Hence, it is the question of law and not fact. Moreover, section 292BB cannot be applied in the given case because the issue is not serving of notice but issue of notice to acquire the jurisdiction to complete the assessment u/s 143(3). Therefore, in the given case, issue is not serving of notice but issue of notice within the period of limitation prescribed in proviso to section 143(2) to complete the assessment u/s 143(3). It is clear from the record that AO has issued the notice u/s 143(2) only on 20/10/2009 instead of issuing the notice on or before 30/09/2009. It clearly shows that the AO has no jurisdiction to complete the assessment u/s 143(3). Hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other parts as not correct. The AO cannot approbate and reprobate. 3. The learned CIT(A) has erred in sustaining an addition of ₹ 5 Lakhs on the ground that the amount received from Sri K Shiva Kumar Reddy has not been explained. He ignored the relevant facts that the amount of ₹ 10,00,000/- was received from B Shyam Sunder Reddy who has accepted and explained the payment of ₹ 10,00,000/- to the assessee. 4.(a) The learned CIT (A) is not justified in upholding the addition of ₹ 9 Lakhs received by way of gift from Sri Radha Krishna Reddy. (b) The AO has accepted the creditworthiness of Sri Radha Krishna Reddy, the grand father of the spouse of the assessee. The lower authorities ought to have accepted the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of the Supreme Court in the case of CIT (Asst.) Vs Hotel Blue Moon Vs CITT (321 ITR 362) applies to the facts of the case. (c) As there was no notice u/s 143(2) existing by 30-09-2009, the assessment proceedings and the resultant assessment order are legally invalid and non est. 2. (a) Learned Assessing Officer (AO) erred in presuming that the investment in purchase of the vacant land is ₹ 1,12,25,000/- and making addition in the assessment on that basis. Assessee invested only ₹ 1,05,84,000/- (roundly) as evidenced by the Registered Sale Deed. Excess addition of ₹ 6,41,000/- on this account is incorrect. (b) Learned AO erred in not considering the amount of ₹ 3,00,000/- offered as income to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firmed all the additions except the addition in respect of loan from NRI sister, which was deleted. 7. Aggrieved, the assessee is in appeal before us. 8. Before us, the assessee has raised a legal ground by way of additional ground that the notice u/ s 143(2) issued on 20-10-2009 is barred by limitation under proviso to Sec 143(2)(ii) of the IT Act according to which no notice shall be served u/ s 143(2) six months after the end of the previous year in which returns is filed. The return was filed on 18-03-2009. The issue of notice is beyond the statutory period making it impossible to be served within the said period of six months which expired on 30-09-2009. 9. Ld. AR submitted that the assessment order passed by the AO is invalid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r High Court) 11. In the rejoinder, the ld. AR relied on the judgment of Hon'ble Jurisdictional High Court in the case of State of Andhra Pradesh Vs. Commercial Tax Officer, Kurnool, 169 ITR 564 to submit that when there are two views possible, while referring to the decisions of different High Courts, the decision which is beneficial to the assessee must be preferred. 12. Considered the rival submissions and perused the material facts on record as well as the case law cited by both the counsels. The fact is, the AO has issued 153A notices for the AYs 2002-03 to 2008-09. He also issued 143(2) notices for the AYs 2002-03 to 2008-09 on 20/10/2009. The AYs 2002-03 to 2007-08 covers the block period and AY 2008-09 is the year in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t may prejudice the other side. But as per the ratio laid down in NTPC case, the question of law can be raised at any stage. In the given case, it is not the issue of serving of notice but issue of notice to acquire jurisdiction to complete the assessment u/s 143(3). Hence, it is the question of law and not fact. Hence, the cases relied upon by the ld. DR (supra) are not applicable to the facts of the case under consideration. Moreover, section 292BB cannot be applied in the given case because the issue is not serving of notice but issue of notice to acquire the jurisdiction to complete the assessment u/s 143(3). Therefore, in the given case, issue is not serving of notice but issue of notice within the period of limitation prescribed in pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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