9911796707
TMI Blog2025 (2) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) within the statutory time limit of up to 30.09.2013 (relevant for the Asst. Year 2012-2013) and hence, the assessment proceedings conducted and assessment order passed in the absence of proper service of notice u/s 143(2) are also illegal and invalid and liable to be quashed. 3. 1) That on the facts and circumstances of the case and the provisions of law. the Ld. CIT (A) was not justified to make an addition of Rs. 41,92,006/-in trading results by presuming estimated profit @ 5% of Rs. 8,38,40,139/-. II) That on the facts and circumstances of the case and the provisions of law, the Ld. CIT (A) has also erred in determining the above said income even without rejecting/pointing any defect in the books of accounts. 4. I) That the Ld. CIT (A) has erred in ignoring the explanation given, evidences and material placed and available on record. The same have not been properly considered and judicially interpreted and the same do not justify the addition made. The addition has been made with preset mind of the Ld. CIT (A) and his order is based on presumptions, surmises, conjectures and suspicion. II) That the Ld. CIT (A) has erred in ignoring the fact that the Ld. AO was not ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant craves leave to add, alter or amend any of the ground(s) of appeal before or during the course of hearing of the appeal. 2. Facts of the case may be summarized as that the assessee filed electronic return declaring income of Rs. 15,592/- on 28.02.2012. The return was processed u/s 143(1) and subsequently selected under CASS for detailed scrutiny. During the year under consideration the assessee company is engaged in the business of trading of fabrics and textiles and in the course of assessment proceedings, on perusal of the return filed by the assessee, it is noticed that the assessee has shown an amount of Rs. 8,38,55,374/- to its balance sheet under the head 'Profit and Loss Account'. Whereas on perusal of return filed by the assessee for A.Y. 2011-12 no accumulated profit has been shown by the assessee in its return. Further, on perusal of the computation sheet of the assessee, the assessee has shown only Rs. 15952/- as business profit. The Ld. AO, found that the sale of goods shown by the assessee is nothing but introduction of its own money under the veil of sale and purchase of cloths and brought to tax u/s 68 of the Act and addition of Rs. 8,38,55,374/- made as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was not a regular 143(2) notice. It was in the form of a questionnaire. On 23.01.2015, the assessee had filed reply to the notice U/s 143(2). The specific queries asked in the aforesaid notice had been replied to with the relevant annexures. It was submitted that in the course of proceeding vide reply dated 09.02.2015, the assessee / appellant had raised an objection before Ld. AO prior to the completion of proceedings. The same is reproduced as under: "We submit that assessment proceedings at Ward24(3) are without jurisdiction. Further, notice U/s 143(2) was also not served on the assessee company within the statutory time limit up to 30.09.2013. Therefore, on this ground also assessment proceedings are illegal." 7. It is also submitted that as per the decision of Hon'ble Supreme Court in ACIT vs Hotel Blue Moon, [2010] 321 ITR 362 (SC), this defect is not curable under section 292BB of Income Tax Act, 1961. However, the AO without addressing this issue passed assessment order on 17.03.2015. He further contended that the assessment order was passed without disposing off the objections raised by the assessee as per section 292BB of Income Tax Act, 1961. Dissatisfied from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause the assessee had filed an affidavit stating that it had not received the notice and the Tribunal rightly held that under these circumstances, the burden was upon the Appellant to prove that notice was served upon the assessee within the prescribed time. The Appellant had failed to prove its case in this regard." 10. Thereafter, on 20.11.2015, the assessee had filed rejoinder to the Remand Report wherein at para 2, assessee had stated the following: "The AO in its report dt. 15.10.2015 has not brought this fact to your honour's knowledge that notice issued u/s 143(2) dt. 23.09.2013, in fact was received back, being non-served. He has just relied upon general presumption of section 27 of General Clause Act. Copy of addressed envelope (non-served) along with copy of notice ws 143(2) dt. 23.09.2013, which was received by the assessee company from the assessment records on inspection of the assessment records, has already been filed with our earlier submissions dt.07.10.2015 (Page Nos 63 to 65 of Paper Book), which clearly shows that notice is received back. Thus, it is crystal clear that notice w/s143(2) dt. 23.09.2013 for the AY 2012-13 2012-13 was not served on the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proper address, stamped or properly posted, the ground taken by the appellant is dismissed." 13. During the hearing, the Ld. AR attracted our attention towards this fact that on 23.08.2024, the assessee had filed an affidavit as per Rule 10 of Income Tax (Appellate Tribunal) Rules, 1963 reiterating the fact that notice U/s 143(2) dated 23.09.2013 was never received by it and the delivery man/post man return from the ground floor itself without delivering the notice to the second floor. 14. He further referred the order of Co-ordinate Bench in Anil Kisanlal Marda v. CIT, 2019 SCC Online ITAT 13123; ITA 1763/PUN/2013 had held in the para 17 and onwards- "17. We have gone through the relevant material on record. In this regard, it is observed from the assessment order that the assessee filed his return on 31-10-2009 showing total income at Rs. 87,06,746/-. It has been recorded in the assessment order that "notice u/s. 143(2) dated 08/09/2010 was issued and served on the assessee. Subsequently, notice u/s. 143(2) dated 11-11-2011 was again issued and served on the assessee". Proviso to section 143(2) of the Act at the material time provided that "no notice under the said sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here that second notice u/s 143(2) dated 07.01.2015 has no value in the eye of the law as having been issued after prescribed period for this purpose and so far notice u/s 143(2) dated 23.09.2013 is concerned, it was returned undelivered by postal remarks "मकान मालिक ने बताया की इस नाम की कोई कंपनी नहीं है" (landlord informed that any company with this name does not exist on this address) which was sent to assessee's registered address on 26.09.2013, and thereafter and before dated 30.09.2013, no any other notice u/s 143(2) of the Act was issued or served as per law. Facts as mentioned hereinbefore and material placed on record reveals that no steps were taken to serve the notice in even alternative mode and also assessee / appellant submitted affidavit containing facts of that effect before the Ld. AO in the assessment proceedings but the Ld. AO completed the assessment without disposing the objection regarding question of valid service. The Ld. CIT( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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