2023 (1) TMI 354

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....der the law, the assessment proceedings taken up & concluded by the Id ACIT, Circle 55(1), New Delhi, are liable to be quashed because he had illegally assumed jurisdiction to assess the assessee, merely on the basis of transfer memo issued by the Id A.O., Ward 35(4), New Delhi on her own. 2. That on the peculiar facts of the case and under the law, the Id. CIT(A) has erred in not quashing the assessment order, which was passed by the Id. ACIT, Circle-55(1), New Delhi on the basis of notice u/s 143(2) which was issued by the Id ITO, Ward 35(4), New Delhi and which was not served upon the assessee. 3. That the Id. CIT(A) has erred in recording his observations/finding that since the assessee had not raised any specific grou....

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....eloper. Business is being conducted under the name and style of M/s Amba Construction Company. During the year under assessment, the assessee has shown gross turnover of Rs.6,68,73,346/- and net profit of Rs.33,41,680/- has been declared thereon giving thereby N.P. ratio of 5.03%. 4. At the outset, the ld. AR argued on the legal issue of nonservice of notice u/s 143(2) of the Income Tax Act, 1961 on the assessee by the ITO, Ward-35(4). 5. The facts reveal that the notice u/s 143(2) dated 06.08.2013 was dispatched to the assessee on 07.08.2013 through Speed Post. The notice was returned undelivered by the remarks of the Postman "Surajmal Vihar, A286 mein yeh firm nahi hai". The revenue authorities relied on the deeming provisions of Se....

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....out to only one possibility, that the notices are selectively being returned by someone on that address. c. Another interesting fact is that when the assessee filed the initial grounds of appeal, there is no mention of nonservice of notice u/s 143(2) which clearly shows that it is just an afterthought of the assessee to deviate attention. 6. It is an undisputable fact that the notice has been issued but has not been served on the assessee and the said notice is a part of the record of the assessment folder even till today. The notice has been dispatched on 07.08.2013 and the last for issue of notice u/s 143(2) was 30.09.2013. The AO had enough time to serve the notice either by affixture or through notice server and make further....

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....he case of CIT Vs. Cebon India Ltd. 347 ITR 583 held that "in the absence of notice being served, the Assessing Officer had no jurisdiction to make assessment. Absence of notice cannot be held to be curable under section 292BB of the Act. 10. The Hon'ble Gujarat High Court in the case of CIT Vs. K.M. Ravji [Tax Appeal No. 771/2010], vide order dated 18.07.2011 held that "in absence of issue of notice u/s 143(2) within the time envisaged by the legislature in the said provisions, the assessment proceedings become invalid." 11. The Hon'ble Supreme Court in the case of Hotel Blue Moon 321 ITR 362 held that "an omission on the part of the AO to issue notice u/s 143(2) cannot be a procedural irregularity and the same is not curable and, th....