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TMI Blog2015 (6) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee has specifically denied service. Thus we hold that non service of notice u/s 143(2) results in the assessment order becoming bad in law. This is true even when the assessments are under normal provisions of the Act. Reliance is placed on the judgement in the case of ACIT vs. Hotel Blue Moon [ 2010 (2) TMI 1 - SUPREME COURT ] Whether the provisions of S.292BB would come to the rescue of the Revenue? - AO has wrongly assumed jurisdiction under the Act. We also hold that, this defect in the assumption of jurisdiction by the AO cannot be cured by taking recourse to the deeming fiction u/s 292 BB - Thus we dismiss the contentions of the Ld.D.R. as devoid on merit. Whether the First Appellate Authority had admitted additional evidence? - In our view no additional evidence has been admitted by the Ld.CIT(A) in this case. The AO has treated the account held by the assessee in Punjab National Bank as the Savings Bank account and whereas it was actually a current account. This was factual mistake committed by the A.O. The Ld.CIT(A) has also examined the books of accounts of the assessee and has observed that the deposits in the current account in the bank is less than the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of hearing. 4. The assessee has filed Cross Objection on the following grounds. 1. That the assessment made u/s 144 is bad in law and liable to be quashed (a) because notice u/s 143 (2) was not served on the assessee term of which are required to be complied. (b) because assessee filed return u/s 139 (1), condition and notice u/s 142 (1) was not served to comply with the direction, other conditions are not fulfilled which are required to make an assessment u/s 144. (c) because before completing assessment u/s 144 there is mandatory requirement to serve show cause notice for completing best judgment assessment or to serve notice u/s 142 (1) under proviso 1 2 of section 144 such assessment is required to be quashed itself. (d) because on inspection of assessment record it was found that all the notices were sent at the wrong/ inaccurate address. (e) because the affixture notice was even affixed at the wrong/inaccurate address. 2. That ground no. 1 raised by AO for admitting additional evidence could not be raised before the Hon'ble ITAT as CIT (A) has not examined any additional evidence to decide the appeal but has exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi 85. She pointed out to the copies of documents obtained from Punjab National Bank to demonstrate that the assessee has given the address as C-5/18, Sector 16, Rohini, Delhi 85. She relied on a number of case laws and argued that the presumption is that the notice has been served on the assessee. 7.2. After verifying the record we come to a conclusion that the notice in question u/s 142(1) and 143(2) have not been served on the assessee though there is proof of issue by speed post, of only one notice at the address 5/5/81, Janta Flats, Sector 5, Rohini, Delhi 81. Which notice was sent is not known. There is no positive proof produced before us of serving of the notice u/s 143(2). The assessee in his return of income has shown the address as C-5/5/81, Janta Flats, Sector 5, Rohini, Delhi 85, and whereas all the notices except one have been sent to the address Door no.C- 5/81, Sector 5, Rohini, Delhi. As only one notice is said to have been sent to the address C-5/5/81, we at best can presume that one notice was served as the assessee. We do not know which is that notices. 7.3. We now extract the relevant provisions of the Act. Section 143(2) of the Act, reads as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etion of such assessment or reassessment. 7.4. The fact that in the tax audit report and in the bank papers the address was noted as C-518, Sector 5, Rohini, Delhi, does not take us to the conclusion that the notice in question has been served on the assessee in the absence of any evidence, when the assessee has specifically denied service. 7.4.1. When notices are not served, the legal position laid down by various High Courts are as follows. The Hon ble High Court in the case of CIT vs. Adarsh Travel Bus Service (2012) 17 taxmann.com 140 (All.) at paras 5 to 9 has held as follows. 5. By considering the rival submissions and on perusal of record, it appears that Section 143(2) of the Act is in two parts. The first part deals with jurisdiction and second with the procedure. The proviso to section 143(2) of the Act puts an embargo on the assessing officer to exercise jurisdiction after the expiry of 12 months from the end of the month in which the return was filed by the assessee. It is the discretion of the assessing officer to accept the return as it is or to proceed further with the assessment of income, once the assessing officer decides to proceed, he has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 48 of the Act protects and grants liberty to the Revenue to serve notice u/s 143(2) of the Act before passing of the assessment order for returns furnished on or before 1st October,2005. In respect of returns filed pursuant to notice u/s 148 of the Act after 1st October,2005, it is mandatory to serve notice u/s 143(2) of the Act, within the stipulated time limit. 7.5. Respectfully following the judgement of the Hon ble High Courts, we hold that non service of notice u/s 143(2) results in the assessment order becoming bad in law. This is true even when the assessments are under normal provisions of the Act. Reliance is placed on the judgement in the case of ACIT vs. Hotel Blue Moon, 321 TTR 362 (SC). 7.6. Coming to the proposition as to whether the provisions of S.292BB would come to the rescue of the Revenue, we find that the Hon ble Allahabad High Court in the case of CIT-2, Lucknow vs. Salarpur Cold Storage (P) Ltd. had at para 13 held as follows. 13. In our view, where the Assessing Officer fails to issue a notice within the period of six months as spelt out in the proviso to clause (ii) of Section 143 (2) of the Act, the assumption of jurisdiction under Section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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