AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (11) TMI 749
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....inst the non service of notice under section 143(2) of the Act on the assessee and challenging the jurisdiction of the AO to frame assessment under section 143(3) of the Act. The assessee has challenged the order of Ld. CIT(A) for not quashing the assessment order passed under section 143(3) on the ground that there has been no service of notice under section 143(2) of the Act. 3. The facts in brief are that the notice under section 143(2) of the Act was issued and sent on the address 710, Everest, J.P. Road, Andheri (West), Mumbai on 29.10.2003. However, the said notice was returned unserved. The assessee, in the return of income filed, has stated the address as E-202, Serenity of New Link Road, Oshiwara, Andheri (West), Mumbai 400 053 an....
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....at this is undisputed that notice has not been served on the assessee. During the course of proceedings before the Tribunal, the AR drew our attention to the RTl reply received by the appellant from the Assessing Officer which is extracted is as under: - Sr.No Information required Reply 8(ii) Was the assessment order u/s. 143(3) dated 31.3.2005 dispatched at the address mentioned at Sr.No.7? If yes, whether the same is delivered or returned unserved? If served, provide copy of the acknowledgment of service. Yes, the assessment order was despatched at the address mentioned at Sr.No.7 and it was retuned unserved. The ld AR submitted that it is very clear from the Assessing Officer's response to the query raised about the addres....
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.... date of service of order / notice of demand as 11.10.2017 and the date of filing of the appeal being 9.11.2017 and therefore in time. The ld AR also referred to the CIT(A) harsh remarks that the appellant has only tried to hoodwink the appellate procedure without any valid reasons. The ld AR submitted that the true copy of the assessment order was certified on 29.9.2017 and was dispatched on 9.10.2017 and served to the appellant on 12.10.2017 as is clear from the RTI reply given by the AO which is extracted as under: Sr.No Information required Reply 9 On which date the true copy of the assessment order certified by ITO Ward 16(1)(1) on 29.9.2017 was despatched? On which date the same was served on me? Kindly provide proof of the d....
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....lenged the legality of the assessment on the ground that the notice issued u/s. 143(2) of the Act was not served on the appellant as it dispatched at wrong address. The Assessing Officer in his reply to RTI query has confirmed the non-service of notice. Finally the ld AR prayed before the bench that the assessment order being nullity may kindly be quashed as the non service of notice goes to the roots of the assessment and is not a curable defect at all. In defence of his arguments, the Ld. A.R. relied on a series of decisions namely; 1. ACIT v Geno Pharmaceuticals Ltd. (Bombay High Court) 32 Taxmann.com 162 2. CIT v Abacus Distribution Systems (India) (P.) Ltd. (Bombay High Court) 78 Taxmann.com 321 3. Harjeet Surajprakash Gir....
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....nder section 143(2) on the assessee and in such a scenario we are left with no option except to quash the assessment order. The case of the assessee is supported by a series of decisions as stated hereinabove. In the case of CIT vs. Abacus Distribution Systems (India) (P.) Ltd. (supra) the Hon'ble Bombay High Court has held that where the notice under section 143(2) has not been served at the correct address then the assessment proceedings concluded on the basis of invalid notice is void. Similarly, in the case of CIT vs. Laxman Das Khandelwal (2019) 108 taxmann.com 183 (SC) the Hon'ble Apex Court has held that no notice under section 143(2) was ever issued by the Department, therefore, in the light of judgement referred to above the assess....