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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 ..... ef. 3. Aggrieved the Revenue is in appeal before us on the following grounds. "1. Whether on the facts and circumstances of the case the Ld.CIT(A) erred in admitting the additional evidence of the assessee, and deleting the addition of Rs.59,87,420/-, ignoring the fact that the conditions prescribed for admitting additional evidence under Rule 46A(1)(a) of the Income Tax Rules, 1962, do not exist in this case. 2. Whether on the facts and circumstances of the case the Ld.CIT(A) erred in admitting the additional evidence of the assessee,, without giving any opportunity to the AO of being heard and/or to cross check and rebut those additional evidence produced by the assessee before the Ld.CIT(A), as required vide Rule 46A(3) of the Income Tax Rules, 1962. The same is against the principles of natural justice. 3. The appellant craves leave to add, alter, amend or vary the above grounds of appeal at or before 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment u/s 144 of the Act on the assessee. We have perused the paper book filed by the assessee consisting of 27 pages and we find that various notices issued and the affixture notice dt. 20.12.2010 was issued/affixed at C-5/18, Janta Flats, Sector 16, Rohini, New Delhi. A copy of the speed post despatch list demonstrate that one notice in this case had been admittedly issued at the address C 5/5/81, Sector 5, Rohini, New Delhi. The assessee has in its return of income has given the address as C-5/5/81, Janta Flats, Sector 5, Rohini, New Delhi 110 085. 7.1. Ld.D.R. filed a paper book consisting of 27 pages and pointed out that in the tax audit report form 3CB address of the assessee was given as C-5/18, Sector 5, Rohini, New Delhi. She further pointed out to the despatch register wherein the AO sent speed post to the address 5/5/81, Janta Flats, Sector 5, Rohini, Delhi 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y as if such return were a return required to be furnished under section 139 : " Section 292BB of the Act, Notice deemed to be valid in certain circumstances. "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- 2(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. " 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue. The appeal has no merits and the same is dismissed." Again the Hon'ble Allahabad High Court in the case of CIT vs. Rajeev Sharma (2010) 192 Taxman 197 (All.) at para 45 has held as follows. "45. In view of the above, the provision contained in s.143(2) of the Act is mandatory in nature and it shall be obligatory for the AO to apply mind to the contents of the return filed in response to notice u/s 148 of the Act and record reasons and thereafter, issue notice u/s 143(2) of the Act before proceeding to decide the controversy with regard to escaped assessment." The Hon'ble Delhi High Court in the case of Alpine Electronics Asia Pte. Ltd. Vs. DIT (2012) 18 taxman.com 246 (Delhi) at para 24 has held as follows. "24. S.143(2) is applicable to proceedings u/s 147/148 of the Act. Proviso to s.148 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. Respectf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 sale figure. 8.1. The First Appellate Authority had at para 4.2 held as follows. "4.2. I have considered the facts of the case and the submissions of the A.R. In para 2.0 I have already given my findings in regard to the contention of the appellant that notices to him were sent by the AO at the wrong address. Even on merits, it is seen that the account with Punjab National Bank, deposits in which have been treated as unexplained cash credits by the AO, is actually a current account of the appellant and not a savings bank account. From the P&L account it is observed that the sales during the year were to the tune of Rs.2,18,76,159/- which are more than the deposits in the current account of the appellant and which is part of the appellant's books of accounts. In view of the foregoing discussion, the addition to income made by the AO u/s 68 of the Act is deleted. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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