TaxTMI 
TaxTMI 
2017 (1) TMI 1195
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....Income Tax Act 1961, (in short the 'Act'), dated 31.12.2009. 2. Brief facts of the case qua the assessee are that the assessee is an individual, engaged in the business of trading of cloths. Assessee filed his return of income on 29.10.2007 declaring total income of Rs. 2,06,368/-. The case of the assessee was selected for scrutiny and statutory notice u/s.143(2) was issued. Thereafter the AO framed the assessment by making various additions. 3. Aggrieved from the order of ld. AO, the assessee filed an appeal before the ld. CIT(A), who has also confirmed the additions made by the AO, by observing the followings :- 5.1.3 As regards the legality of the assessment proceedings, the A/R relied on the written submissions and conten....
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....s that in any event, the service of notice upon minor daughter is not a valid service. Though the Assessing Officer stated that the appellant responded to notice under sec. 143(2) seeking for adjournment, he has not mentioned the date of service of the said notice. In CIT v. Avi-Oil India (P.) Ltd. [2010]323 ITR 242 (Punj.&Har.), it had been held that resort cannot be had to section 292B to validate mandatory requirement of service as postulated in section 143(2). As regards the last notice issued on 24-11-2009 fixing the hearing on 01-12-2009, the emotional finding of the Assessing Officer as earlier reproduced, has been that "Being encumbered by the luggage of non compliance setting aside volley of requests the assessee again lettered on ....
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.... is without any evidence or merit and the same is rejected." 5.1.5 Now, coming to the merits of the case, the Assessing Officer has made the following additions to the income returned: 1. Unsecured loan given to Smt. Mina Devi Kedia Rs. 1,22,500/- 2. Sundry creditors as appearing in balance-sheet Rs. 1 ,26,36,671/- 3. Disallowance of 20% out of telephone expenses Rs. 9,671/- For personal use. As regards the addition of Rs. 1,22,500/ - on account of unsecured loan given to Smt. Mina Devi Kedia, it may be noted that section 68 comes into play only on account of credit entries and not in respect of an asset shown in the balance- sheet. This addition being frivolous is liable to be deleted. ....
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....the same is liable to be deleted. Coming to the disallowance on account of personal use of telephone at Rs. 9671/-, in my view, looking to the extent of the business, the expenditure as claimed by the assessee could not be held to unjustified or unwarranted. In any case, the additions made without application of mind and without brining any cogent material on record or comparative study of past records, even if it is a best judgment, do not stand to the test of law. 5.1.6 In view of the foregoing facts and circumstances of the case, the assessment is annulled. The two grounds of appeal are accordingly allowed." 4. Not being satisfied with the order of ld. CIT(A), the Revenue is in further appeal before us and has taken the follo....
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.... hard to believe that she would not handover the notice to her father or any senior member of the family. The assessee is willfully taking the place of minority of his daughter to avoid his tax liability. 5.1 On the other hand, the ld AR for the assessee has submitted before us that "service of notice on Minor child" is not considered a valid service of notice of the assessee. That is, "service of notice on Minor child" is considered, as if no notice has been served on the assessee. The Ld. AR for the assessee has relied on section 15 of the Code of Civil Procedure,1908, which reads as under: "Where service may be on an adult member of defendant`s family. 15. Where in any suit the defendant is absent from his residence ....
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.... the Assessing Officer in respect of adjournment of hearing and I did not receive any notice of hearing at all. 3. THAT, further the question of engaging any authorized representative on my behalf for representation of my case before the Assessing Officer for the A.Y.2007-08 did not arise at all as no notice of hearing was served upon me. 4. THAT, the allegation that notice of hearing was served upon my minor daughter is also denied as my daughter did not handover any notice of hearing to me for the A.Y.2007-08 and it may so happen that she unknowingly signed the Tear-off slip without understanding the implication thereof. 5. THAT, in any event, service of notice upon minor daughter is not a valid service. ....