Flovel Energy Pvt Ltd, New Delhi v. ACIT Circle-9(1), New Delhi

ITA 6485/DEL/2019 | 2011-2012
Pronouncement Date: 29-11-2019 | Result: Allowed

Appeal Details

RSA Number 648520114 RSA 2019
Assessee PAN AABCF0582E
Bench Delhi
Appeal Number ITA 6485/DEL/2019
Duration Of Justice 3 month(s) 27 day(s)
Appellant Flovel Energy Pvt Ltd, New Delhi
Respondent ACIT Circle-9(1), New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2019
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 29-11-2019
Assessment Year 2011-2012
Appeal Filed On 02-08-2019
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : E : NEW DELHI BEFORE SHRI R.K. PANDA ACCOUNTANT MEMBER AND SHRI K. NARASIMHA CHARY JUDICIAL MEMBER ITA NO.6485/DEL/2019 ASSESSMENT YEAR: 2011-12 FLOVEL ENERGY PVT. LTD. C/O RRA TAXINDIA D-28 SOUTH EXTN. PART-I NEW DELHI. PAN: AABCF0582E VS ACIT CIRCLE-9(1) NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI DR. RAKESH GUPTA ADVOCATE SHRI KAILASH MITTAL ADVOCATE SHRI PRIYANSH JAIN CA & SHRI DEEPESH GARG ADVOCATE REVENUE BY : MS RATCHI BIMAL SR. DR DATE OF HEARING : 11.11.2019 DATE OF PRONOUNCEMENT : 29.11.2019 ORDER PER R.K. PANDA AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 27 TH JUNE 2019 OF THE CIT(A)-34 NEW DELHI RELATING TO ASSES SMENT YEAR 2011-12. 2. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE COMPANY IS A JOINT VENTURE BETWEEN FLOVEL INDIA AND MECAMIDI SA FRANCE. IT P ROVIDES ALL INCLUSIVE SOLUTIONS FOR SMALL HYDRO POWER PROJECTS AND PROVI DES SOLUTIONS FOR RENOVATION MODERNIZATION AND UPGRADATION OF EXISTING HYDROPOWE R PLANTS. IT FILED ITS RETURN OF ITA NO.6485/DEL/2019 2 INCOME ON 29 TH SEPTEMBER 2011 DECLARING TOTAL INCOME OF RS.2 64 02 058/-. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S 143( 3) ON 30 TH JUNE 2013 DETERMINING THE TOTAL INCOME AT RS.2 04 57 580/-. SUBSEQUENTLY THE CASE OF THE ASSESSEE WAS REOPENED U/S 147 OF THE IT ACT 1961 A ND NOTICE U/S 148 WAS ISSUED ON 29 TH JANUARY 2015. THE BASIS FOR SUCH REOPENING WAS T HAT A SURVEY WAS CONDUCTED IN THE CASE OF THE ASSESSEE U/S 133A ON 2 2 ND JANUARY 2014 DURING WHICH A DIARY WAS FOUND FROM THE CABIN OF SHRI R.N. AGGAR WAL DGM (FINANCE) WHICH WAS IMPOUNDED AS ANNEXURE A-11. THE SAID DIARY CON TAINS DETAILS OF RECEIPT OF CASH AGAINST THE PAYMENT MADE TO VARIOUS PARTIES IN THE GARB OF COMMISSION/BUSINESS PROCUREMENT AND UNDER OTHER HEA DS. THE DIARY ALSO CONTAINED UNACCOUNTED SALE OF SCRAP AND EXCESS PAYM ENT OF INTEREST OVER AND ABOVE WHAT HAS BEEN RECORDED IN THE BOOKS OF ACCOUNT. AC CORDING TO THE ASSESSING OFFICER THE ASSESSEE DID NOT FILE ANY REPLY IN RES PONSE TO SUCH NOTICE ISSUED U/S 148. HE THEREAFTER ISSUED NOTICE U/S 142(1) DATE D 29 TH FEBRUARY 2016 FIXING THE CASE FOR HEARING ON 8 TH MARCH 2016. THE AR OF THE ASSESSEE ATTENDED BEFO RE THE ASSESSING OFFICER ON 8 TH MARCH 2016 AND FILED ITS REPLY WHEREIN IT WAS SUB MITTED THAT REPLY TO THE NOTICE ISSUED DATED 09.01.2015 WA S SUBMITTED IN THE OFFICE OF THE THEN DCIT CIRCLE (9) NEW DELHI WITH A REPLY DATED 23 RD MARCH 2015 AND A COPY OF THE SAME WAS ALSO ENCLOSED. ACCORDING TO THE AS SESSING OFFICER NO SUCH REPLY WAS FOUND AS PER THE OFFICE RECORD. FURTHER THE A SSESSEE VIDE LETTER DATED 9 TH MARCH 2016 SUBMITTED THAT THE REPLY DATED 23 RD MARCH 2015 WAS SUBMITTED BY THE ASSESSEE THROUGH SPEED POST. THE ASSESSEE REQUESTED FOR COPY OF REASONS RECORDED ITA NO.6485/DEL/2019 3 WHICH WAS PROVIDED TO THE ASSESSEE. THE ASSESSEE F ILED ITS OBJECTIONS AGAINST SUCH REASSESSMENT PROCEEDINGS WHICH WAS DISPOSED OF BY T HE ASSESSING OFFICER BY PASSING A SPEAKING ORDER. THE ASSESSING OFFICER T HEREAFTER COMPLETED THE ASSESSMENT U/S 144/143(3) DETERMINING THE TOTAL INC OME OF THE ASSESSEE AT RS.4 70 49 353/- WHEREIN HE MADE THE FOLLOWING THR EE ADDITIONS:- A) BUSINESS PROCUREMENT EXPENSES - RS.1 85 28 300/- B) UNACCOUNTED SCRAP - RS.13 85 556/- C) EXCESS PAYMENT OVER AND ABOVE DEBITED IN THE P&L A/C - RS.6 77 918/- 3. BEFORE THE CIT(A) THE ASSESSEE APART FROM CHALLEN GING THE ADDITION ON MERIT CHALLENGED THE VALIDITY OF THE REASSESSMENT PROCEEDINGS AND ALSO CHALLENGED THE VALIDITY OF THE ASSESSMENT ON THE GROUND OF NON -ISSUANCE OF NOTICE U/S 143(2). HOWEVER THE LD.CIT(A) DISMISSED THE APPEAL FILED B Y THE ASSESSEE AND UPHELD THE VALIDITY OF THE REASSESSMENT PROCEEDINGS AS WELL AS THE VALIDITY OF ASSESSMENT ON ACCOUNT OF NON-ISSUANCE OF NOTICE U/S 143(2). SO F AR AS THE ORDER OF THE CIT(A) DISMISSING THE GROUND RAISED BY THE ASSESSEE ON ACC OUNT OF NON-ISSUANCE OF NOTICE U/S 143(2) IS CONCERNED HE REJECTED THE SAME BY OB SERVING AS UNDER:- 6.3 I HAVE CONSIDERED THE FACTS OF THE CASE FINDI NG OF THE AO REMAND REPORT AND SUBMISSION OF THE APPELLANT. THE APPELLA NT HAS OBJECTED THE INITIATION OF REASSESSMENT PROCEEDINGS ON THE BASIS THAT NOTICE U/S 143(2) WAS NOT ISSUED WITHIN THE TIME ALLOWED UNDER THE PROVIS O TO SECTION 143(2). THE APPELLANT HAS ALSO RAISED OBJECTION ON THE BASIS TH AT AO HAS MENTIONED IN THE REASON RECORDED THAT INCOME OF RS.3 13 46 453/- CHA RGEABLE TO TAX HAS ESCAPED ASSESSMENT BUT HAS NOT SPELLED OUT IN THE REASON AS TO WHICH MATERIAL FACTS WAS NOT DISCLOSED DURING THE ORIGINAL ASSESSMENT PROCEE DINGS. REMAND REPORT IS CALLED FOR FROM THE AO ON THE ISSUE OF OBJECTION RA ISED BY THE APPELLANT FOR THE ISSUANCE OF NOTICE U/S 143(2). THE AO HAS SUBMITTED THAT APPELLANT HAS NOT ITA NO.6485/DEL/2019 4 RAISED ANY OBJECTION DURING THE COURSE OF REASSESSM ENT PROCEEDINGS WITH REGARD TO SERVICE OF NOTICE U/S 143(2) AND COMPLIED TO ALL THE NOTICES ISSUED. IN THE CASE OF THE APPELLANT NOTICE WAS ISSUED ON 09.0 1.2015 WHILE THE OBJECTIONS WERE FILED BY THE APPELLANT ONLY ON 14.03.2016. THE AO HAS DULY DISPOSED OFF THE OBJECTION AS PER THE DECISION OF THE HON'BLE SU PREME COURT IN THE CASE OF GKN DRIVESHAFTS INDIA LTD. VS ITO 259 ITR 19 VIDE L ETTER DATED 15.03.2016. AFTER DISPOSAL OF THE OBJECTION AO HAS ISSUED THE NOTICE U/S 143(2) TO THE APPELLANT. EVEN IN THE OBJECTIONS APPELLANT HAS NOT RAISED THE ISSUE OF NON ISSUANCE OF NOTICE U/S 143(2) WITHIN TIME. THE AO H AS FOLLOWED THE PROCEDURE LAID DOWN BY THE HON'BLE SUPREME COURT IN GKN DRIVE SHAFTS THUS OBJECTION RAISED BY THE APPELLANT FOR NOT ISSUANCE NOTICE WIT HIN TIME IS NOT ACCEPTABLE. THE APPELLANT IS ALSO NOT ENTITLED TO RAISE OBJECTI ON AS PER THE PROVISIONS OF SECTION 292BB AS NOTICE U/S 143(2) OF THE ACT WAS DULY SERVED UPON IT AND APPELLANT HAS APPEARED AND COOPERATED DURING THE AS SESSMENT PROCEEDINGS. 6.4 CONSIDERING THE ABOVE FACTS AO HAS CORRECTLY I NITIATED THE REASSESSMENT PROCEEDINGS IN THE CASE OF THE APPELLA NT AND OBJECTION RAISED BY THE APPELLANT ON THE INITIATION OF REASSESSMENT PRO CEEDINGS ARE NOT MAINTAINABLE. 4. SO FAR AS THE ADDITION ON MERIT IS CONCERNED HE AL SO UPHELD THE ACTION OF THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSEE W AS UNABLE TO OFFER ANY EXPLANATION IN RESPECT OF THE ENTRIES IN THE INCRIM INATING DOCUMENTS FOUND DURING THE COURSE OF SURVEY. 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESS EE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACT ION OF LD. AO IN PASSING THE IMPUGNED REASSESSMENT ORDER AND THAT TOO WITHOU T ASSUMING JURISDICTION AS PER LAW AND WITHOUT COMPLYING THE STATUTORY COND ITIONS AS STIPULATED U/S 147 TO 151 OF INCOME TAX ACT 1961 MORE SO WHEN PASSIN G OF FOUR WEEKS WAS NOT ALLOWED TO THE ASSESSEE AFTER DISPOSAL OF OBJECTION S BEFORE PASSING THE ASSESSMENT ORDER. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN PASSING THE IMPUGNED REASSESSMENT ORDER U/S 147/143 (3) EVEN THOUGH NO ITA NO.6485/DEL/2019 5 NOTICE U/S 143(2) HAS BEEN ISSUED/SERVED WITHIN THE STATUTORY ALLOWABLE PERIOD AS PER LAW AND BY RECORDING INCORRECT FACTS. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN MAKING DISALLOWANCE OF RS. 1 85 28 300/- ON ACCOUNT OF BUSINESS PROCUREMENT EXPENSES AND THAT TOO BY RECORDING INCORRECT FACTS FINDINGS AND BY DISREGARDING THE SUBMISSIONS EVIDENCES AND MATERIAL PLACED BY T HE ASSESSEE AND IN VIOLATION OF PRINCIPAL OF NATURAL JUSTICE. 4. THAT IN ANY CASE AND IN THE VIEW OF THE MATTER ACTION OF LD. CIT(A) IN CONFIRMING THE ACTION OF LD. AO IN MAKING DISALL OWANCE OF RS. 1 85 28 300/- ON ACCOUNT OF BUSINESS PROCUREMENT EX PENSES IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN MAKING ADDITION OF RS. 13 85 556/- ON ACCOUNT OF SC RAP SALE AND THAT TOO BY RECORDING INCORRECT FACTS AND FINDINGS AND IN VIOLA TION OF PRINCIPLES OF NATURAL JUSTICE. 6. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN MAKING ADDITION OF RS.6 77 918/- ON ACCOUNT OF INTE REST PAID ON UNSECURED LOAN AND THAT TOO BY RECORDING INCORRECT FACTS AND FINDINGS AND IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 7. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER ACTION OF LD. CIT(A) IN CONFIRMING THE ACTION OF LD. AO IN PASSING THE I MPUGNED REASSESSMENT ORDER AND VARIOUS DISALLOWANCES MADE THEREIN ARE IL LEGAL BAD IN LAW CONTRARY TO LAW AND FACTS VOID AB-INITIO AND NOT SUSTAINABL E ON VARIOUS LEGAL AND FACTUAL GROUNDS. 8. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSI NG THE ACTION OF LD. AO IN CHARGING INTEREST U/S 234B AND 234C OF INCOME TAX A CT 1961. 9. THAT THE APPELLANT CRAVES THE LEAVE TO ADD MOD IFY AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 6. THE LD. COUNSEL FOR THE ASSESSEE STRONGLY CHALLENGE D THE ORDER OF THE CIT(A). IN HIS PRELIMINARY OBJECTION REGARDING NON-ISSUANCE OF NOTICE U/S 143(2) THE LD. COUNSEL DREW THE ATTENTION OF THE BENCH TO THE ASSE SSMENT ORDER AND THE ORDER OF ITA NO.6485/DEL/2019 6 THE CIT(A) FOR ASSESSMENT YEAR 2010-11 WHICH WAS ID ENTICALLY WORDED. HE SUBMITTED THAT FOR BOTH THE ASSESSMENT YEARS THE NO TICE U/S 148 WAS ISSUED ON 9 TH JANUARY 2015 WHICH CAN BE VERIFIED FROM PAGE 208 O F THE PAPER BOOK FOR A.Y. 2010-11 AND FROM PAGE 32 FOR ASSESSMENT YEAR 2011-1 2. HE SUBMITTED THAT THE ASSESSEE IN RESPONSE TO THE NOTICE U/S 148 ISSUED ON 09.01.2015 HAD FILED ITS REPLY DATED 23 RD MARCH 2015 THAT THE RETURN FILED EARLIER BE TREAT ED AS RETURN IN RESPONSE TO NOTICE U/S 148. HE SUBMITTED THAT BOTH THE LETT ERS WERE SENT THROUGH SPEED POST. THE LETTER FOR ASSESSMENT YEAR 2010-11 WAS POSTED O N 23 RD MARCH 2015 WITH RECEIPT NO.EH600331750IN COPIES OF WHICH ARE AT PA PER BOOK PAGE 200 AND 201. SIMILARLY COPY OF THE RECEIPT FOR THE LETTER POSTE D ON 23 RD MARCH 2015 WITH POSTAL RECEIPT NO.EH600331746IN IS AT PAGE 40 AND 41 OF TH E PAPER BOOK FOR A.Y. 2011- 12. REFERRING TO THE COPIES OF THE LETTER TO THE A SSESSING OFFICER DATED 29 TH FEBRUARY 2016 HE SUBMITTED THAT IT WAS REPLIED BY THE ASSESSEE THAT THE RETURN HAD ALREADY BEEN FILED ON 23 RD MARCH 2015. THE LETTER FOR ASSESSMENT YEAR 2010- 11 IS PLACED AT PAGES 202 TO 204 WHEREAS THE LETTER FOR A SSESSMENT YEAR 2011-12 IS PLACED AT PAPER BOOK PAGES 93 AND 94. HE SUBMITTED THAT T HE ASSESSEE VIDE REPLY DATED 9 TH MARCH 2016 HAD SUBMITTED THAT THE RETURN HAD ALREA DY BEEN FILED ON 23 RD MARCH 2015. THE COPY OF SUCH LETTER FOR ASSESSMENT YEAR 2010-11 IS PLACED AT PAGES 205 TO 207 AND FOR ASSESSMENT YEAR 2011-12 THE SAME IS PLACED AT PAPER BOOK PAGE 95. HE SUBMITTED THAT THE ASSESSING OFFICER ON 15 TH MARCH 2016 VIDE SEPARATE ORDERS DISPOSED OF THE OBJECTIONS COPIES OF WHICH ARE PLA CED AT PAPER BOOK PAGES 208 TO 216 FOR ASSESSMENT YEAR 2010-11 AND AT PAGES 44 TO 52 FOR ASSESSMENT YEAR 2011- ITA NO.6485/DEL/2019 7 12. SIMILARLY THE REASSESSMENT ORDER WAS PASSED B Y THE ASSESSING OFFICER SEPARATELY FOR BOTH THE YEARS ON 31.03.2016. THE C IT(A) ALSO PASSED THE ORDER FOR BOTH THE YEARS SEPARATELY ON 27 TH JUNE 2019. HE ACCORDINGLY SUBMITTED THAT THE FACTS FOR BOTH THE ASSESSMENT YEARS ARE SIMILAR. R EFERRING TO THE COPY OF THE ORDER OF THE TRIBUNAL FOR ASSESSEES OWN CASE FOR THE IMM EDIATELY PRECEDING ASSESSMENT YEAR HE SUBMITTED THAT THE TRIBUNAL HAS QUASHED TH E ASSESSMENT ON THE GROUND THAT NO NOTICE U/S 143(2) WAS ISSUED TO THE ASSESSEE. R EFERRING TO THE REPLY OBTAINED FROM THE REVENUE UNDER RTI ACT HE SUBMITTED THAT I T WAS MENTIONED BY THE ASSESSING OFFICER THAT THE LETTER DATED 23 RD OCTOBER 2015 FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2010-11 IS NOT AVAILABLE ON THE REC ORDS MAINTAINED IN THIS OFFICE. HE SUBMITTED THAT WHEN THE LETTER FOR ASSESSMENT YE AR 2010-11 WAS AVAILABLE IN THE OFFICE OF THE DEPARTMENT IT CANNOT BE SAID THAT TH E LETTER FOR THE ASSESSMENT YEAR 2011-12 IS NOT AVAILABLE ON THE RECORD. TO STRENGT HEN HIS ARGUMENT THE LD. COUNSEL SUBMITTED THAT NEITHER THE ASSESSMENT HAS BEEN COMP LETED U/S 144 NOR THE ASSESSING OFFICER HAS LEVIED INTEREST U/S 234A WHIC H SHOWS THAT THE ASSESSEE HAD IN FACT FILED THE LETTER IN RESPONSE TO NOTICE U/S 148. THEREFORE IN ABSENCE OF ISSUANCE OF ANY NOTICE U/S 143(2) THE ASSESSMENT H AS TO BE QUASHED IN VIEW OF THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE IMMEDIATELY PRECEDING ASSESSMENT YEAR. REFERRING TO THE FOLLOWING DECISI ONS HE SUBMITTED THAT IN TERMS OF SECTION 27 OF THE GENERAL CLAUSES ACT IF A NOTI CE IS PROPERLY ADDRESSED AND DISPATCHED THROUGH REGISTERED POST THERE IS A PRES UMPTION THAT IT HAS BEEN SERVED ON THE ASSESSEE:- ITA NO.6485/DEL/2019 8 I) CIT VS. VINS OVERSEAS INDIA LTD. (2008) 305 ITR 320 (DEL); II) CIT VS. MADHSY FILMS (P) LTD. (2008) 301 ITR 69 (DE L); III) R.L. NARANG VS. CIT (1982) 136 ITR 108 (DEL); & IV) CIT VS. SHANKER LAL VED PRAKASH (2008) 300 ITR 243 (DEL). 7. REFERRING TO THE FOLLOWING DECISIONS HE SUBMITTED THAT NOTICE U/S 143(2) IS COMPULSORY EVEN IN REASSESSMENT PROCEEDINGS AND ABS ENCE OF ISSUE OF NOTICE WITHIN THE STATUTORY PERIOD MAKES SUCH ASSESSMENT I NVALID AND BAD IN LAW:- I) MRS. C. MALATHY VS. ITO (2004) 89 TTJ 938 (CHENNAI) ; II) B.D. GUPTA VS. DY. CIT (2004) 90 TTJ 915 (AGRA); III) ACIT VS. HOTEL BLUE MOON (2010) 321 ITR 362 (SC); IV) RAJ KUMAR CHAWLA VS. ITO (2005) 94 ITD 1 (DEL-TRIB) ; V) ACIT VS. GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHO RITY (2015) 379 ITR 14 (ALL); VI) CIT VS. M. CHELLAPPAN (2005) 281 ITR 444 (MAD); VII) ITO VS. DLG ENTERPRISES (2011) 53 DTR 65 (LKW-TRIB) ; VIII) ACIT VS. KALYAN JANATA SAHAKARI BANK LTD. (2015) 12 8 DTR 136 (MUM-TRIB); IX) ALPINE ELECTRONICS ASIA (P) LTD. VS. DGIT (2012) 34 1 ITR 247 (DEL); & X) ACIT VS. ASHED PROPERTIES & INVESTMENTS PVT. LTD. ( 2015) 62 TAXMANN.COM 340 (BANGALORE-TRIB) ITA NO.6485/DEL/2019 9 8. REFERRING TO THE FOLLOWING DECISIONS HE SUBMITTED THAT THE RETURN FILED AFTER THE EXPIRY OF GIVEN TIME PRESCRIBED IN NOTICE U/S 1 48 IS ALSO A VALID RETURN:- I) LATE JANAK K. KANSARA VS. DCIT (2008) 116 TTJ 415 ( AHD-TRIB); II) CIT VS. RAJEEV SHARMA (2011) 336 ITR 678 (ALL); III) PCIT VS. JAI SHIV SHANKAR TRADERS (P) LTD. (2016) 3 83 ITR 448 (DEL); & IV) DCIT VS. MS MAYAWATI (2010) 135 TTJ 274 (DEL-TRIB). 9. REFERRING TO THE FOLLOWING DECISIONS THE LD. COUNS EL FOR THE ASSESSEE SUBMITTED THAT THE PROVISION OF SECTION 292BB DOES NOT CURE NON-ISSUANCE OF NOTICE OR EVEN ISSUANCE OF SUCH NOTICE AFTER THE PERIOD OF LIMITATION:- I) CIT VS. LAXMAN DAS KHANDELWAL CIVIL APPEAL NO.6261 -6262/2019 DT. 13.08.2019. II) PR. CIT VS. JAI SHIV SHANKAR TRADERS (2016) 383 ITR 448 (DEL); III) ACIT VS. ASHED PROPERTIES & INVESTMENTS PVT. LTD. ( 2015) 62 TAXMANN.COM 340 (BANGALORE-TRIB); IV) ALPINE ELECTRONICS ASIA (P) LTD. VS. DGIT (2012) 34 1 ITR 247 (DEL); & V) ACIT VS. GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHO RITY (2015) 379 ITR 14 (ALL). ITA NO.6485/DEL/2019 10 10. THE LD. COUNSEL REFERRING TO THE FOLLOWING DECISIO NS SUBMITTED THAT THE COURTS HAVE HELD THAT NON-ISSUANCE OF NOTICE U/S 14 3(2) IS NOT A MERE IRREGULARITY BUT IS AN ILLEGALITY WHICH CANNOT BE CURED:- I) PR. CIT VS. OBEROI HOTELS (P) LTD. (2018) 96 TAXMAN N.COM 104 (CAL); II) ACIT VS. HOTEL BLUE MOON (2010) 321 ITR 362 (SC); III) ACIT VS. ASHED PROPERTIES & INVESTMENTS (P) LTD. (2 015) 62 TAXMANN.COM 340 (BANGALORE-TRIB); IV) TRAVANCORE DIAGNOSTIC (P) LTD. VS. ACIT (2017) 390 ITR 167 (KER.); & V) ITO VS. ALIGARH AUTO CENTRE (2013) 34 TAXMANN.COM 2 11 (AGRA-TRIB) 11. HE ACCORDINGLY SUBMITTED THAT THE ORDER PASSED BY T HE ASSESSING OFFICER HAS TO BE HELD AS VOID AB INITIO AND HAS TO BE QUASHED SINCE NO NOTICE U/S 143(2) W AS ISSUED WITHIN THE STIPULATED PERIOD OF TIME. 12. SO FAR AS THE MERIT OF THE CASE IS CONCERNED THE L D. COUNSEL FOR THE ASSESSEE REFERRING TO VARIOUS PAGES OF THE PAPER BOOK SUBMI TTED THAT THERE IS NO INCRIMINATING DOCUMENTS FOUND DURING THE COURSE OF SURVEY. WHATEVER COMMISSION HAS BEEN PAID BY THE ASSESSEE HAS BEEN D EBITED IN THE P&L ACCOUNT AND THE ASSESSEE HAS NOT GIVEN ANYTHING EXTRA. SO FAR AS THE SALE OF SCRAP IS CONCERNED THE LD. COUNSEL SUBMITTED THAT IT IS A M ERE PRESUMPTION BASED ON PAST PRACTICE BUT NOTHING CONCRETE WAS FOUND DURING TH E COURSE OF SURVEY AND NO INCRIMINATING MATERIAL WAS FOUND. SO FAR AS THE EX CESS PAYMENT OF INTEREST IS ITA NO.6485/DEL/2019 11 CONCERNED HE SUBMITTED THAT THE ASSESSEE IS PAYING 12% INTEREST PER ANNUM TO THE LOAN CREDITORS WHICH HAS BEEN DEBITED IN THE P&L AC COUNT AND THE REVENUE MERELY ON THE BASIS OF PRESUMPTIONS AND SURMISES I S ADOPTING SUCH INTEREST @ 36% PER ANNUM. HE ACCORDINGLY SUBMITTED THAT EVEN ON M ERIT THE ADDITION SO SUSTAINED BY THE CIT(A) SHOULD BE DELETED. 13. THE LD. DR ON THE OTHER HAND STRONGLY CHALLENGED THE ARGUMENTS ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE AND HEAVILY REL IED ON THE ORDER OF THE CIT(A). SHE SUBMITTED THAT THE NON-ISSUANCE OF NOTICE U/S 1 43(2) WAS NEVER RAISED BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSME NT PROCEEDINGS. FURTHER THERE WAS NO REASON FOR KEEPING THE ORDERS FOR BOTH THE A SSESSMENT YEARS TOGETHER SINCE THE FACTS OF THIS YEAR ARE DIFFERENT FROM THAT OF T HE PRECEDING ASSESSMENT YEAR INASMUCH AS IN THE PRECEDING ASSESSMENT YEAR THE RE PLY FILED BY THE ASSESSEE WAS TRACEABLE WHEREAS FOR THE IMPUGNED ASSESSMENT YEAR SUCH REPLY IS NOT ON THE RECORDS OF THE DEPARTMENT. REFERRING TO THE DECISI ON OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. MADHYA BHARAT ENERGY LTD. 337 ITR 389 SHE SUBMITTED THAT THE HON'BLE HIGH COURT IN THE SAID D ECISION HAS HELD THAT NON-ISSUE OF NOTICE U/S 143(2) OF THE ACT ON AN ASSESSEE PRIO R TO THE COMPLETION OF REASSESSMENT WOULD NOT BE FATAL TO THE REASSESSMENT . SHE ALSO RELIED ON THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE CIT VS. VINS OVERSEAS INDIA LTD. REPORTED IN (2008) 305 ITR 320 (DEL). SHE FURTHER SUBMITTED THAT THE ASSESSING ITA NO.6485/DEL/2019 12 OFFICER IN THE INSTANT CASE HAS ISSUED NOTICE U/S 1 43(2) ON 15.03.2016 AS PER PARA 2 OF THE ASSESSMENT ORDER. 13.1 SO FAR AS THE MERIT OF THE CASE IS CONCERNED SHE SUBMITTED THAT THE ADDITION WAS MADE ON THE BASIS OF INCRIMINATING EVIDENCES FO UND DURING THE COURSE OF SURVEY IN THE SHAPE OF A DIARY WHICH WAS RECOVERED FROM ONE OF THE EMPLOYEES OF THE ASSESSEE COMPANY. THE ENTRIES SO RECORDED IN T HE DIARY CLEARLY MENTION THAT THE ASSESSEE WAS MAKING FALSE ENTRIES IN ITS BOOKS OF A CCOUNT TO SUPPRESS ITS INCOME OR NOT RECORDING CERTAIN TRANSACTIONS. THEREFORE THE ADDITION ON ACCOUNT OF BUSINESS PROCUREMENT EXPENSES SCRAP SALES INTEREST PAID ON BORROWALS WAS RIGHTLY UPHELD BY THE CIT(A). 14. THE LD. COUNSEL FOR THE ASSESSEE IN HIS REJOINDER REFERRING TO THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF PCIT VS. JAI SHIV SHANKAR TRADERS PVT. LTD. (2016) 383 ITR 448 (DEL) SUBMITTED THAT THE HON'BLE HIGH COURT IN THE SAID DECISION HAS HELD THAT FAILURE OF THE ASSESSIN G OFFICER TO ISSUE NOTICE U/S 143(2) IN REASSESSMENT PROCEEDINGS PRIOR TO FINALI ZING THE REASSESSMENT ORDER CANNOT BE CONDONED BY REFERRING TO SECTION 292BB AN D IS FATAL TO THE ORDER OF REASSESSMENT. HE SUBMITTED THAT IN THE SAID DECISI ON IT HAS BEEN CLEARLY BROUGHT OUT THAT THE DECISION OF THE HON'BLE HIGH COURT IN THE CASE OF MADHYA BHARAT ENERGY LTD. (SUPRA) HAS BEEN RECALLED THEREFORE THE DECISION RELIED ON BY THE LD. DR IS OF NO USE. SO FAR AS THE DECISION REPORTED I N THE CASE OF CIT VS. VINS OVERSEAS INDIA LTD. (SUPRA) IS CONCERNED HE SUBMITTED THAT THE HON'BLE HIGH C OURT ITA NO.6485/DEL/2019 13 IN THE SAID DECISION HAS HELD THAT IN TERMS OF SECT ION 27 OF THE GENERAL CLAUSES ACT 1897 IF A NOTICE IS PROPERLY ADDRESSED AND DISPATC HED THROUGH REGISTERED POST THERE IS A PRESUMPTION THAT IT HAS BEEN SERVED ON T HE ASSESSEE. HE SUBMITTED THAT IF THE DECISION RELIED ON BY THE LD. DR IS ACCEPTED FO R A MOMENT THEN IT HAS TO BE HELD THAT THE ASSESSEE HAS FILED THE REPLY IN RESPO NSE TO NOTICE U/S 148 WHICH IS EVIDENCED BY THE SPEED POST RECEIPT. THEREFORE TH E ORDER OF THE TRIBUNAL FOR THE PRECEDING ASSESSMENT YEAR HAS TO BE FOLLOWED AND TH E ASSESSMENT ORDER HAS TO BE QUASHED FOR NON-ISSUANCE OF NOTICE U/S 143(2). REF ERRING TO THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF MAYADEVI BANSAL VS. CIT REPORTED IN 117 ITR 125 HE SUBMITTED THAT THE PROPOSITION LAID DOWN BY THE HON'BLE HIGH COURT IS THAT IN ABSENCE OF NON-FILING OF THE RETUR N ASSESSMENT HAS TO BE COMPLETED U/S 144. IT HAS FURTHER BEEN HELD THAT EVEN IF THE RETURN HAS BEEN FILED IN A WRONG FORM THE ASSESSMENT CANNOT BE MADE U/S 143(3) AND IT HAS TO BE PASSED U/S 144 OF THE ACT. THEREFORE THE ASSESSING OFFICER IN THE INSTANT CASE HAVING NOT PASSED THE ASSESSMENT ORDER U/S 144 THE INEVITABLE CONCLU SION IS THAT THE ASSESSEE HAS FILED THE RETURN IN RESPONSE TO NOTICE U/S 148 OF THE IT ACT. IT HAS BEEN HELD IN VARIOUS DECISIONS THAT IN TERMS OF SECTION 27 OF THE GENERA L CLAUSES ACT IF A NOTICE IS PROPERLY ADDRESSED AND DISPATCHED THROUGH REGISTERE D POST THERE IS A PRESUMPTION THAT IT HAS BEEN SERVED ON THE ASSESSEE. IF THIS T HEORY IS APPLICABLE TO THE ASSESSEE AS ARGUED BY THE REVENUE IN A NUMBER OF CASES THE VICE VERSA ALSO SHOULD BE APPLICABLE TO THE REVENUE AND THEREFORE IF AN ASS ESSEE FILES A REPLY WHICH IS PROPERLY ADDRESSED AND DISPATCHED THROUGH REGISTERE D POST THEN THERE IS A ITA NO.6485/DEL/2019 14 PRESUMPTION THAT IT HAS BEEN DULY SERVED ON THE ASS ESSING OFFICER. SO FAR AS THE ARGUMENT OF THE LD. DR THAT NOTICE U/S 143(2) WAS I SSUED ON 15.03.2016 WHICH IS PRIOR TO COMPLETION OF ASSESSMENT IS CONCERNED HE SUBMITTED THAT THE SAME BEING NOT ISSUED WITHIN STATUTORY PERIOD OF FILING OF THE RETURN IN RESPONSE TO NOTICE U/S 148 HAS GOT BARRED BY LIMITATION. 15. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE ORDERS OF THE A.O AND CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECI SIONS CITED BEFORE US. WE FIND THE ASSESSING OFFICER IN THE INSTANT CASE HAS REO PENED THE ASSESSMENT BY ISSUE OF NOTICE U/S 148 ON 09.01.2015 COPY OF WHICH IS PLAC ED AT PAGE 32 OF THE PAPER BOOK. IN RESPONSE TO SUCH NOTICE THE ASSESSEE VI DE LETTER DATED 23 RD MARCH 2015 FILED A REPLY STATING THAT THE RETURN FILED BY THEM FOR ASSESSMENT YEAR 2011-12 ON 29 TH SEPTEMBER 2011 MAY KINDLY BE TREATED AS THE RETUR N FILED IN RESPONSE TO SUCH NOTICE DATED 9 TH JANUARY 2015. IN SUPPORT THAT THIS LETTER WAS SE NT BY SPEED POST THE ASSESSEE HAS ENCLOSED THE POSTAL RECEIPT BEARIN G NO.EH60011746IN DATED 23 RD MARCH 2015 COPY OF WHICH HAS BEEN PLACED AT PAGE 41 OF THE PAPER BOOK. IT IS THE CASE OF THE ASSESSEE THAT SINCE THE ASSESSEE HAS FI LED A LETTER STATING THAT THE ORIGINAL RETURN FILED SHOULD BE TREATED AS THE RETURN FILED IN RESPONSE TO NOTICE U/S 148 THEREFORE THE ASSESSING OFFICER WAS DUTY BOUND TO ISSUE NOTICE U/S 143(2) AND SINCE THE SAID NOTICE WAS NEVER ISSUED BY THE ASSES SING OFFICER THEREFORE THE ASSESSMENT ORDER IS BAD IN LAW AND HAS TO BE QUASHE D. HOWEVER WE FIND THE ITA NO.6485/DEL/2019 15 LD.CIT(A) DID NOT ACCEPT THE CONTENTION OF THE ASSE SSEE AND DISMISSED THE GROUND RAISED ON THIS ISSUE THE REASONS FOR WHICH HAVE ALR EADY BEEN REPRODUCED IN THE PRECEDING PARAGRAPHS. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT WHEN THE NOTICE U/S 148 WAS ISSUED BY THE SAME ASSE SSING OFFICER FOR BOTH THE ASSESSMENT YEARS I.E. 2010-11 AND 2011-12 ON THE S AME DATE AND WHEN THE ASSESSEE HAD FILED THE REPLY BEFORE THE SAME ASSESS ING OFFICER ON THE SAME DATE AND THE ASSESSMENT ORDER WAS ALSO PASSED BY THE SAM E ASSESSING OFFICER ON THE SAME DATE THE ORDER DISPOSING OF THE OBJECTIONS FI LED BY THE ASSESSEE IS ALSO ON THE SAME DATE AND THE ORDER OF THE CIT(A) WAS ALSO PASS ED ON THE SAME DATE FOR BOTH THE ASSESSMENT YEARS THEREFORE IT CANNOT BE SAID THAT THE ASSESSEE HAS FILED THE REPLY ONLY FOR ASSESSMENT YEAR 2010-11 STATING THAT THE RETURN FILED ORIGINALLY MAY BE TREATED AS THE RETURN FILED IN RESPONSE TO THE N OTICE U/S 148 AND NO SUCH REPLY WAS FILED FOR ASSESSMENT YEAR 2011-12. 16. WE FIND SOME FORCE IN THE ARGUMENTS ADVANCED BY THE ASSESSEE. A CHRONOLOGY OF DATES FOR BOTH THE ASSESSMENT YEARS S HOWS THAT THE NOTICE U/S 148 WAS ISSUED ON THE SAME DATE THE OBJECTION OF THE A SSESSEE FOR SUCH REOPENING WAS DISPOSED OF BY THE ASSESSING OFFICER BY PASSING A S PEAKING ORDER ON THE SAME DATE THE REASSESSMENT ORDERS FOR BOTH THE YEARS WERE PAS SED ON THE SAME DATE AND THE CIT(A) ALSO HAS PASSED THE APPELLATE ORDERS FOR BOT H THE YEARS SEPARATELY ON THE SAME DATE. THEREFORE IT CANNOT BE SAID THAT THE A SSESSEE HAS FILED THE REPLY FOR TREATING THE EARLIER RETURN AS RETURN IN RESPONSE T O THE NOTICE U/S 148 DATED ITA NO.6485/DEL/2019 16 09.01.2015 ONLY FOR ASSESSMENT YEAR 2010-11 AND NOT FOR ASSESSMENT YEAR 2011-12 ESPECIALLY WHEN THE POSTAL RECEIPTS FOR BOTH THE SP EED POSTS ARE ALSO ON THE SAME DATE. IT IS PERTINENT TO MENTION HERE THAT THE ASS ESSING OFFICER HAS NOT PASSED THE ORDER U/S 144 NOR ANY INTEREST HAS BEEN LEVIED U/S 234A OF THE IT ACT. THEREFORE IT STRENGTHENS THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE THAT HE HAS IN FACT FILED THE REPLY IN RESPONSE TO THE NOTICE U/S 148 S TATING THAT THE RETURN FILED EARLIER BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTIC E U/S 148. 17. ONCE IT IS HELD THAT THE ASSESSEE HAS FILED A LETTE R STATING THAT THE RETURN FILED EARLIER BE TREATED AS RETURN IN RESPONSE TO THE NOT ICE U/S 148 DATED 09.01.2015 THE NEXT STAGE IS REGARDING THE ISSUE OF NOTICE U/S 143 (2). IT IS AN ADMITTED FACT THAT NO NOTICE U/S 143(2) HAS BEEN ISSUED BY THE REVENUE TO THE ASSESSEE THEREAFTER WITHIN THE STIPULATED TIME AS THE NOTICE WAS ISSUED ONLY O N 15.03.2016. FURTHER IN RESPONSE TO THE QUERY RAISED UNDER RTI ACT IT HAS BEEN MENTIONED THAT NO SUCH LETTER IS AVAILABLE ON THE RECORD MAINTAINED IN THE OFFICE OF THE DEPARTMENT. IN OUR OPINION THE ASSESSEE CANNOT BE PENALIZED FOR THE M ISTAKE ON THE PART OF THE DEPARTMENT OR THE ASSESSING OFFICER. 17.1 WE FIND THE ASSESSING OFFICER IN THE CASE OF THE AS SESSEE FOR A.Y. 2010-11 AT PARA 2 OF THE ASSESSMENT ORDER HAS OBSERVED AS U NDER:- 2. THE ASSESSEE FILED LETTER DATE 14.03.2016 WHERE IN IN OBJECTED AGAINST THE RE-ASSESSMENT PROCEEDINGS U/S 147 FOR A.Y. 2010 -11. THE ABOVE OBJECTION OF THE ASSESSEE WAS CONSIDERED BUT NOT FOUND TO BE ACCEPTABLE. FURTHER THE UNDERSIGNED VIDE ORDER DATED 15.03.2016 PASSED A SP EAKING ORDER DISPOSING OBJECTIONS TO THE NOTICE U/S 148 OF THE ACT FOR A.Y . 2010-11 AND PROCEEDED ITA NO.6485/DEL/2019 17 WITH THE REASSESSMENT PROCEEDINGS BY ISSUING NOTICE U/S 143(2) DATED 15.03.2016. 18. WE FIND UNDER IDENTICAL CIRCUMSTANCES THE TRIBUNA L IN ASSESSEES OWN CASE IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR HAS H ELD THE ASSESSMENT ORDER TO BE BAD IN LAW ON ACCOUNT OF NON-ISSUANCE OF NOTICE U/S 143(2) OF THE IT ACT 1961 WITHIN THE STIPULATED TIME PRESCRIBED UNDER THE ACT . THE RELEVANT OBSERVATIONS OF THE TRIBUNAL AT PARA 5 READ AS UNDER:- 5. HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PER USED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE JUDGMENT OF B ROADWAY SHOE CO . 99 TAXMANN 83 RELIED BY THE LD. DR I S NOT APPLICABLE TO THE FACTS OF THE CASE AS IN THAT CASE THE ASSESSEE HAS NOT FILED A RETURN IN RESPONSE TO THE NOTICE ISSUED U/S 148 OF THE ACT WHEREAS IN THE INSTANT CASE THE ASSESSEE HAS FILED RETURN U/S 139(1) OF THE ACT IN REGULAR COURSE AND AL SO R EPLIED TO THE NOTICE THAT THE RETURN FILED BY THEM ON 15.10.2010 MAY BE TREATED A S RETURNED FILED IN RESPONSE TO THE NOTICE U/S 148 ISSUED ON 09.01.2015 . UNDER SUCH CIRCUMSTANCES IT IS INCUMBENT UPON THE ASSESSING O FFICER TO ISSUE NOTICE U/S 143(2) WITHIN THE TIME STIPULATED AS PER THE PROVIS IONS OF THE ACT WHICH HE FAILED TO OBSERVE. HENCE KEEPING IN VIEW THE JUDGM ENT O F JURISDICTIONAL HIGH COURT IN THE CASE OF ALPINE ELECTRONICS ASIA P VT. LTD. 341 ITR 247 WHEREIN THE JUDGMENT OF HOTEL BLUE MOON 321 ITR 362 (SC) HAS BEEN DULY REFERRED TO WE HEREBY HOLD THAT OMISSION TO ISSUE NOTICE U/S 143(2) IS NOT CURABLE AND THE REQUIREMENT CANNOT BE DISPENSED WIT H. IT IS MANDATORY TO ISSUE NOTICE U/S 143(2) EVEN IN THE CASE OF REASSES SMENT U/S 148. SIMILARLY SECTION 292BB INCORPORATES THE PRINCIPLE OF ESTOPPE L AND STIPULATES THAT AN ASSESSEE WHO HAS APPEARED IN ANY PROCEEDING AND CO- OPERATED IN ANY ENQUIRY RELATING TO ASSESSMENT OR REASSESSMENT SHALL BE DEE MED TO BE SERVED WITH ANY NOTICE WHICH WAS REQUIRED TO BE SERVED AND WOULD BE PRECLUDED FROM OBJECTING THAT THE NOTICE WAS NOT SERVED UPON HIM O R WAS SERVED UPON HIM IN AN IMPROPER MANNER OR WAS NOT SERVED UPON HIM IN TI ME. HOWEVER THE PRINCIPLE OF ESTOPPEL DOES NOT APPLY IF THE ASSESSE E HAS RAISED OBJECTION IN REPLY TO THE NOTICE BEFORE COMPLETION OF ASSESSMENT OR REASSESSMENT WHICH IS THE ISSUE IN THE INSTANT CASE. HENCE KEEPING IN VI EW THE ENTIRE FACTS OF THE CASE AND ESTABLISHED JUDGMENTS ON THE ISSUE WE HER EBY HOLD THAT THE ASSESSMENT COMPLETED BY THE REVENUE CANNOT BE HELD TO BE VALID IN THE EYES OF LAW. ITA NO.6485/DEL/2019 18 19. THE HON'BLE DELHI HIGH COURT IN THE CASE OF PCIT VS. JAI SHIV SHANKAR TRADERS PVT. LTD. (SUPRA) HAS HELD THAT FAILURE OF THE ASSESSING OFFICER TO ISSUE NOTICE U/S 143(2) IN REASSESSMENT PROCEEDINGS PRIO R TO FINALIZING REASSESSMENT ORDER CANNOT BE CONDONED BY REFERRING TO SECTION 29 2BB AND IS FATAL TO THE ORDER OF REASSESSMENT. VARIOUS OTHER DECISIONS RELIED ON BY THE ASSESSEE IN THE CASE LAW COMPILATION ALSO SUPPORT HIS CASE THAT IN ABSENCE O F ISSUE OF NOTICE U/S 143(2) EVEN IN REASSESSMENT PROCEEDINGS THE ORDER BECOMES INVA LID AND HAS TO BE QUASHED. SINCE IN THE INSTANT CASE THE ASSESSEE FILED THE LETTER STATING THAT THE RETURN FILED ORIGINALLY MAY BE TREATED AS RETURN FILED IN RESPON SE TO NOTICE U/S 148 AND SINCE THE NOTICE U/S 143(2) WAS NOT ISSUED WITHIN THE STATUTO RY PERIOD AND SINCE THE ASSESSMENT WAS NOT COMPLETED U/S 144 NOR ANY INTERE ST U/S 234A HAS BEEN CHARGED WHICH INDIRECTLY PROVES THAT THE ASSESSEE IN FACT HAS FILED THE LETTER STATING THAT THE RETURN FILED ORIGINALLY MAY BE TREATED AS RETURN FI LED IN RESPONSE TO NOTICE U/S 148 THEREFORE RESPECTFULLY FOLLOWING THE DECISION OF T HE TRIBUNAL IN ASSESSEES OWN CASE FOR THE IMMEDIATELY PRECEDING ASSESSMENT YEAR WE HOLD THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS NOT IN ACC ORDANCE WITH LAW AND HAS TO BE QUASHED. THE LEGAL GROUND RAISED BY THE ASSESSEE C HALLENGING THE VALIDITY OF THE ASSESSMENT ORDER IS ACCORDINGLY ALLOWED. SINCE THE ASSESSEE SUCCEEDS ON THE LEGAL GROUNDS THE VARIOUS OTHER GROUNDS RAISED BY THE AS SESSEE BECOME ACADEMIC IN NATURE AND THEREFORE ARE NOT BEING ADJUDICATED. ITA NO.6485/DEL/2019 19 20. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 2 9.11.2019. SD/- SD/- (K. NARASIMHA CHARY) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 29 TH NOVEMBER 2019 DK COPY FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR ITAT NEW DELHI