2019 (10) TMI 129

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....cordingly the assessment so made is without jurisdiction and contrary to law. 4. That the issue of notice U/s.148 without recording reasons and without forming proper reasons of belief, without following the procedure laid down in the Act, without approval of the appropriate authority prescribed under section 151 is bad in law being without the authority of law. 5. The assessment made without service of any notice u/s.143(2) of the Act and the Ld. CITA has erred in stating that notice u/s.143(2) has duly been served, without confronting the assessee with the remand report and the evidence produced by the AO before the Ld. CIT(A). 6. The consequent reassessment u/s.147 is bad in law and void having been made without the authority of law and the Ld. CIT(A) has erred in confirming assessment u/s.147. 7. That the assessment having been so made without allowing proper opportunity to defend is against equity and in violation of principles of natural Justice and is therefore null and void. WITHOUT PREJUDICE TO THE ABOVE LEGAL GROUNDS: 8. The appellant denies his liability to tax as upheld by the learned CIT(A) and determined and computed by ....

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....of the Ld. CIT(A) and stated that assessee has taken this ground before the Ld. CIT(A) vide ground no. 3.1 which is at page no. 2 of the impugned order i.e. "That the assessment u/s. 147 made without the service of statutory notice u/s. 143(2) before making the assessment is without jurisdiction and bad in law." and stated that Ld. CIT(A) has wrongly observed that the notice u/s. 143(2) was in order and decided the same against the assessee vide para no. 4 to 4.2 of the impugned order at page no. 2. He further draw my attention towards proceedings sheet dated 28.2.2013 before the AO wherein the AO has served the notice u/s. 143(2) of the Act dated 28.2.2013 on the same date i.e. 28.2.2013 when the Assessee's counsel appeared before the AO in the proceedings, which is totally illegal, without application of mind. He further stated that the issue in hand is squarely covered with the decision of the Hon'ble Delhi High Court decision in the case of Silver Line Reported at 383 ITR 455 and the decision of the ITAT, Delhi Bench in the case of Micron Enterprises Pvt. Ltd. Vs. ITO in ITA No. 901/Del/2016 (AY 2006-07) order dated 14.5.2018. 4. On the contrary, Ld. DR relied upon the order....

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.... decision of the Hon'ble Delhi High Court in the case of Silver Line Reported at 383 ITR 455 wherein the Hon'ble High Court has observed as under:- "...12. The Court first proposes to consider the question as to whether in terms of the proviso to Section 292BB of the Act, the Assessee was precluded, at the stage of the proceedings before the ITAT, from raising a contention regarding failure of the AO to issue a notice under section 143(2) of the Act. The legal position appears to be fairly well settled that Section 292BB of the Act talks of the drawing of a presumption of service of notice on an assessee and is basically a rule of evidence. In Commissioner of Income Tax vs. Parikalpana Estate Development (P) Ltd. (supra) in answering a similar question, the Court referred to its earlier decision in ITA No. 5789 of 2015 and connected matters page 10 of 15 of Income tax vs. Mukesh Kumar Agrawal (2012) 345 ITR 29 (All.) and pointed out that Section 292BB of the Act was a rule of evidence which validated service of notice in certain circumstances. It introduces a deeming fiction that once the Assessee appears in any proceeding or has cooperated in any enquiry relating to asses....

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....d on 23rd March, 2000 and since the return was filed on 27th March, 2000, the notice was not a valid one and, therefore, the assessment completed on the basis of the notice was also invalid and was consequently set aside. It is for the first time that the counsel for the appellant contends that the notice, in fact, was issued on 27th March, 2000 and not on 23rd March, 2000, the date which is recorded on the notice itself. No such contention was raised before the lower appellate authorities. Consequently, the said contention cannot be raised before the Court for the first time. The appellant has stated that the return was filed by the assessee on 27th March, 2000 and the notice under s. 143(2) was served upon the Authorized Representative of the assessee by hand when the Authorized Representative of the assessee came and filed return. However, the date of the notice was mistakenly mentioned as 23rd March, 2000. Assuming the aforesaid to be true, the notice was served on the Authorized Representative simultaneously on his filing the return which clearly indicates that the notice was ready even prior to the filing of the return. The provisions of s. 143(2) make it dear that t....