//FIT FOR PUBLICATION// SD/- SD/- A.M. J.M. IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES F : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA.NO.2907/DEL./2010 ASSESSMENT YEAR 2005-2006 THE INCOME TAX OFFICER, WARD-14(1), ROOM NO.209, CENTRAL REVENUE BUILDING, NEW DELHI 110 002. VS. PTC IMPEX (INDIA) PVT. LTD., 251-252, DINA KA TALAO, MALKA GANJ, DELHI. PAN AACCP3165C (APPELLANT) (RESPONDENT) CROSS OBJECTION NO.213/DEL./2010 ARISING OUT OF ITA.NO.2907/DEL./2010 ASSESSMENT YEAR 2005-2006 PTC IMPEX (INDIA) PVT. LTD., 251-252, DINA KA TALAO, MALKA GANJ, DELHI. PAN AACCP3165C VS. THE INCOME TAX OFFICER, WARD-14(1), ROOM NO.209, CENTRAL REVENUE BUILDING, NEW DELHI 110 002. (CROSS-OBJECTOR) (RESPONDENT) FOR REVENUE : SHRI AFIQ AHMAD, SR.D.R. FOR ASSESSEE : SHRI SOMIL AGARWAL, ADVOCATE DATE OF HEARING : 01.02.2018 DATE OF PRONOUNCEMENT : 16.02.2018 2 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI ORDER PER BHAVNESH SAINI, J.M. THE DEPARTMENTAL APPEAL AS WELL AS CROSS-OBJECTIO N BY ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE L D. CIT(A)-XVII, NEW DELHI, DATED 15 TH MARCH, 2010, FOR THE A.Y. 2005-2006. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BO TH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON R ECORD. 3. THE REVENUE HAS FILED THE APPEAL ON THE FOLLOWI NG GROUNDS : 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN DELETING THE DISALLO WANCE OF DEDUCTION OF RS.1,57,41,762/- CLAIMED U/S 10B OF IT ACT. THE LD. CIT(A) IGNORED THE EVIDENCES SUCH AS NON PURCHASING OF NEW PLANT AND MACHINERY, RUNNING OF SIMILAR BUSINESS FROM THE SAME PREMISES, THE UNDERTAKING WAS FORMED FROM THE EARLIER EXISTING COMPANY DEALING IN THE SAME ACTIVITIES AND THUS, ASSESSEE WAS NOT FULFILLING THE BASIC CONDITIONS OF SECTION 10B OF IT ACT. 3 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN IGNORING THE FINDING S OF THE AO WITH RESPECT TO MANUFACTURING PROCESS, CONSUMPTION OF ELECTRICITY, DEPLOYMENT OF LABOUR PRODUCTION VIS-A- VIS CONSUMPTION OF RAW MATERIAL E TC. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN DELETING THE ADDITIO N OF RS.73,89,823/- BEING THE PRICE OF 46,401 KG OF FINISHED PRODUCT NOT ACCOUNTED FOR BY THE ASSESSEE BY IGNORING THE FACT THAT THERE WAS DIFFERENCE OF 46,4 01 KG IN CONSUMPTION AND PRODUCTION PATTERN. 4. THE ASSESSEE HAS FILED THE CROSS OBJECTION ON T HE FOLLOWING GROUND : 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. A.O. IN ASSUMING THE JURISDICTION TO PASS THE IMPUGNED ASSESSMENT ORDER UNDER SECTION 143(3), MORE SO WHEN JURISDICTIONAL NOTICE UNDER SECTION 143(2) WAS NOT SERVED WITHIN T HE STATUTORY ALLOWABLE PERIOD, MUCH LESS IN ACCORDANCE WITH LAW. 4 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI 5. BRIEFLY, THE FACTS OF THE CASE ARE THAT RETURN DECLARING INCOME OF RS.96,450 WAS FILED ON 31 ST OCTOBER, 2005. THE CASE WAS SELECTED FOR SCRUTINY BY ISSUING NOTICE UNDER S ECTION 143(2) ON 27 TH OCTOBER, 2006 WHICH WAS SERVED UPON THE ASSESSES. THE A.O. ASKED THE ASSESSEE TO FILE DETAILS. THE A.O. C ONSIDERED THE ISSUE OF CLAIM OF EXEMPTION UNDER SECTION 10B OF TH E I.T. ACT, 1961. THE ASSESSEE CLAIMED DEDUCTION OF RS.1,57,41, 762 UNDER SECTION 10B ON EXPORT OF HOT MIX MASALA CLAIMED TO HAVE BEEN MANUFACTURED BY THE ASSESSEE. THE A.O. DENIED THE E XEMPTION UNDER SECTION 10B OF THE I.T. ACT AND HELD THAT SIN CE THE ASSESSEE HAS BEEN FOUND NOT TO BE ENGAGED IN MANUFA CTURING ACTIVITY AND FOUND TO EXPORT ITEM WHICH ARE NOT MAN UFACTURED BY IT, ITS CLAIM OF DEDUCTION OF RS.1,57,41,762 UND ER SECTION 10B WAS NOT ALLOWABLE AND THE SAME WAS ACCORDINGLY, DISALLOWED AND ADDITION WAS ACCORDINGLY, MADE. 5.1. FURTHER, THE A.O. CONSIDERED THE ISSUE OF SUP PRESSION OF SALES. THE ASSESSEE SUBMITTED THAT DIFFERENCE OF 46,401 KG. IS BECAUSE OF NATURAL LOSS WHICH HAPPENS DURING THE CLEANING, 5 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI STAINING, GRINDING, PACKING ETC. THE A.O. HOWEVER, DID NOT ALLOW CLAIM OF ASSESSEE. IT WAS, THEREFORE, NOTED THAT AS SESSEE HAS NOT ACCOUNTED FOR THE SAME INCOME IN RESPECT OF DISPOSA L OF 46,401 KG OF FINISHED PRODUCTS. THEREFORE, THE INCOME AMOU NTING TO RS.73,89,823 (BEING SALE PRICE OF 46,401 KG @ RS.15 9.26PER KG) IN THE DOMESTIC MARKET WAS ADDED TO THE INCOME OF T HE ASSESSEE. THE A.O. COMPLETED THE ASSESSMENT UNDER SECTION 143 (3) VIDE ORDER DATED 31 ST DECEMBER, 2007. 6. THE ASSESSEE CHALLENGED THE VALIDITY OF THE ASSESSMENT SO FRAMED BY THE A.O. WITHOUT SERVING MA NDATORY NOTICES UNDER SECTION 143(2) WITHIN THE STATUTORY P ERIOD. IT WAS, THEREFORE, SUBMITTED THAT A.O. HAS WRONGLY ASSUMED JURISDICTION TO FRAME THE ASSESSMENT. THE ASSESSEE ALSO CHALLENGED THE DISALLOWANCE OF DEDUCTION UNDER SECT ION 10B OF RS.1,57,41,762 AND ADDITION OF RS.73,89,823 ON ACCO UNT OF ALLEGED SUPPRESSION OF SALES BEFORE LD. CIT(A). 6 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI 7. THE ASSESSEE AS REGARDS THE ASSUMPTION OF JURISDICTION TO FRAME ASSESSMENT UNDER SECTION 143( 3) SUBMITTED THAT THE MANDATORY NOTICE UNDER SECTION 1 43(2) WAS NOT SERVED UPON HIM WITHIN THE PRESCRIBED PERIOD AS PER LAW. THEREFORE, THE ASSESSMENT ORDER FRAMED BY THE A.O. WAS WITHOUT ASSUMING JURISDICTION AS PER LAW AND THEREFORE, THE SAME IS NULLITY IN THE EYE OF LAW. THE ASSESSEE ALSO FILED WRITTEN SUBMISSIONS IN WHICH IT WAS EXPLAINED THAT THE A.O. ASSUMED JURISDICTION TO FRAME THE ASSESSMENT UNDER SECTION 143(3) WITHOUT COMPLYING WITH THE MANDATORY REQUIREMENT OF SERVICE OF NOTICE UNDER SECTION 143(2) WITHIN THE MANDATORY PERIOD OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RE TURN OF INCOME WAS FILED AS PER THE PROVISO TO SECTION 143( 2) OF THE I.T. ACT, 1961. COPY OF THE ACKNOWLEDGMENT OF FILING OF THE RETURN WAS FILED TO PROVE THAT RETURN WAS FILED ON 31 ST OCTOBER, 2005. COPY OF THE NOTICE UNDER SECTION 143(2) DATED 27 TH OCTOBER, 2006 WAS FILED WHICH WAS DISPATCHED ON 30 TH OCTOBER, 2006 AT 12.12. P.M. AND SERVED/RECEIVED ON 2 ND NOVEMBER, 2006. THE ASSESSEE OBJECTED TO THE ASSUMPTION OF JURISDICTION UNDER 7 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI SECTION 143(2) BEFORE A.O. AND CONTENDED THAT NOTIC E WAS SERVED ON 2 ND NOVEMBER, 2006. THIS OBJECTION WAS RAISED DURING T HE COURSE OF ASSESSMENT PROCEEDINGS VIDE LETTER SENT T HROUGH UPC/ REGISTERED POST. COPIES OF THE SAME WERE ALSO FILED BEFORE LD. CIT(A). ASSESSEE REQUESTED THAT DEPARTMENTAL RECORD MAY BE INSPECTED AND COULD FIND THAT IT CONTAIN ENVELOPE S HOWING THE RECEIPT OF REGISTERED POST DATED 27.11.2007. SURPRI SINGLY, THE DEPARTMENT ASSESSMENT RECORD DOES NOT CONTAIN THE A SSESSEES LETTER OBJECTING THE PRESENT ASSESSMENT PROCEEDINGS ON THE GROUND OF NON-SERVICE OF NOTICE UNDER SECTION 143(2 ) OF THE ACT, WITHIN THE PRESCRIBED TIME. THE A.O. IN THE ASSESSM ENT ORDER DID NOT MENTION AS TO WHEN THE NOTICE DATED 27 TH OCTOBER, 2006 WAS SERVED AND MERELY MENTIONED THE DATE OF ISSUE. THUS, THE NOTICE UNDER SECTION 143(2) HAVING BEEN SERVED BEYO ND 31 ST OCTOBER, 2006, AND THEREFORE, THE JURISDICTION ASSU MED BY THE A.O. IS NULLITY AND SO IS THE PRESENT ASSESSMENT OR DER UNDER APPEAL. THE ASSESSEE RELIED UPON SEVERAL DECISIONS IN SUPPORT OF THE PROPOSITION THAT SERVICE OF NOTICE UNDER SECTIO N 143(2) WITHIN THE STATUTORY PERIOD IS MANDATORY AND IN THE ABSENCE OF 8 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI SAME, THE ASSESSMENT ORDER WOULD BE ILLEGAL AND VOID ABINITIO . THE BURDEN IS UPON THE REVENUE TO PROVE SERVICE OF THE NOTICE. THE DECISIONS RELIED UPON BY ASSESSEE INCLUDES THE DECISIONS OF THE HONBLE DELHI HIGH COURT IN THE CASES OF NULON INDIA LTD., 216 CTR 142 IN WHICH IT WAS HELD THAT SERVICE HAS TO BE PROVED BY THE REVENUE BY LEADING POSITIVE EVIDENCE AND THA T THERE IS NO PRESUMPTION THAT NOTICE MUST HAVE BEEN SERVED UPON IT WITHIN 24 HOURS. AND CIT VS. LUNAR DIAMONDS LTD., 197 CTR 312 (DEL.) IN WHICH IT WAS HELD THAT TRIBUNAL HAVING HELD THAT THE REVENUE HAS FAILED TO PROVE THAT THE NOTICE UNDER SECTION 1 43(2) WAS SERVED UPON THE ASSESSEE WITHIN THE PRESCRIBED TIME AND SET ASIDE THE ASSESSMENT ORDER ON THAT GROUND, NO SUBST ANTIAL QUESTION OF LAW ARISE AND THE ASSESSEE ALSO FILED ADDITIONAL EVIDENCES UNDER RULE 46A, WHICH ARE COPY OF THE LET TER AND POSTAL RECEIPTS TO PROVE LETTER SENT THROUGH REGIST ERED POST AND UPC ON 27.11.2007, IN WHICH IT WAS BROUGHT TO THE N OTICE OF THE A.O. THAT THERE IS A DELAYED SERVICE OF THE NOTICE UNDER SECTION 143(2). IT WAS ALSO EXPLAINED THAT ASSESSEE CHALLEN GED THE VALIDITY OF NOTICE BY SUBMITTING HIS LETTER DATED 2 7.11.2007 9 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI BEFORE A.O, COPY OF WHICH IS FILED BEFORE LD. CIT(A ) AND RELEVANT PORTION OF LETTER IS REPRODUCED IN PARA 3.4 OF THE APPELLATE ORDER IN WHICH THE ASSESSEE CHALLENGED THE SERVICE OF NOT ICE UNDER SECTION 143(2) BECAUSE IT WAS SERVED ON 02.11.2006 BEYOND THE PERIOD PRESCRIBED UNDER SECTION 143(2)(II) OF THE I .T. ACT. THE LD. CIT(A) SENT ALL THESE EVIDENCES TO THE A.O. FOR HIS SPECIFIC COMMENTS. THE A.O. SENT HIS REMAND REPORT ON 14 TH MAY, 2009, WHICH IS REPRODUCED IN THE APPELLATE ORDER IN WHICH THE A.O. HIGHLIGHTED THAT THE NOTICE UNDER SECTION 143(2) DA TED 27 TH OCTOBER, 2006 WAS SENT THROUGH THE REGISTERED POST ON 30 TH OCTOBER, 2006. ANOTHER COPY OF THE NOTICE WAS ALSO SERVED UPON THE ASSESSEE ON 30 TH OCTOBER, 2006 BY AFFIXTURE ON THE LAST KNOWN ADDRESS OF THE ASSESSEE WHICH IS VALID SERVIC E. COPY OF THE SERVICE THROUGH AFFIXTURE WAS FILED WITH REMAND REPORT. THE A.O. ALSO STATED THAT WHEN LETTER DATED 17.11.2007 WAS SENT, WHY IT WAS SENT AGAIN ON 27.11.2017 IS NOT EXPLAINE D. IT WAS STATED THAT LETTER DATED 27.11.2007 IS NOT AVAILABL E ON RECORD. THE A.O. ALSO REFERRED TO SECTION 292BB OF THE FINA NCE ACT, 2008, IN WHICH IT HAS BEEN MADE CLEAR THAT WHERE AN ASSESSEE 10 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI APPEARED IN ANY PROCEEDINGS OR COOPERATED IN ANY IN QUIRY RELATING TO ASSESSMENT OR RE-ASSESSMENT, IT SHALL B E DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF THIS ACT, WHICH I S REQUIRED TO BE SERVED UPON HIM, HAS BEEN DULY SERVED UPON HIM, IN ACCORDANCE WITH THE PROVISIONS OF LAW, AND SUCH ASSESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTION IN ANY PROCE EDINGS OR INQUIRY UNDER THIS ACT THAT THE NOTICE WAS NOT SERV ED UPON HIM WITHIN TIME. IT WAS, THEREFORE, SUBMITTED THAT ADDI TIONAL EVIDENCE MAY NOT BE ADMITTED AS NOTICE UNDER SECTIO N 143(2) HAVE BEEN SERVED WITHIN THE TIME. 8. COPY OF THE REMAND REPORT AND COPY OF AFFIXTURE REPORT WERE PROVIDED TO THE ASSESSEE FOR ITS COUNTE R COMMENTS. THE ASSESSEE FILED THE COUNTER COMMENTS VIDE LETTER DATED 13 TH JUNE, 2009. THE RELEVANT PORTION OF THE SAME IS REP RODUCED IN THE APPELLATE ORDER IN WHICH THE ASSESSEE BRIEFLY E XPLAINED THAT A.O. DID NOT GIVE OPPORTUNITY AT ASSESSMENT STAGE. THEREFORE, ADDITIONAL EVIDENCE AS ABOVE MAY BE ADMITTED. THE A .O. DID NOT MENTION IN THE ASSESSMENT ORDER THAT NOTICE DATED 2 7 TH OCTOBER, 11 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI 2006 UNDER SECTION 143(2) HAVE BEEN SERVED THROUGH AFFIXTURE. THIS FACT IS DISCLOSED FOR THE FIRST TIME IN THE RE MAND REPORT. IT WAS SUBMITTED THAT ASSESSEE WAS CONSISTENTLY SUBMIT TED THAT NOTICE SENT BY REGISTERED POST ON 30 TH OCTOBER, 2006, AT 12.12 P.M. WAS RECEIVED BY ASSESSEE ON 2 ND NOVEMBER, 2006. IT IS A JURISDICTIONAL NOTICE. THEREFORE, IT SHOULD BE SERV ED UPON THE ASSESSEE UP TO 31 ST OCTOBER, 2006. THE ASSESSEE CHALLENGED THE SERVICE OF THE NOTICE, WITHIN THE PERIOD. A.O. HAS NOT BROUGHT ANY EVIDENCE ON RECORD TO PROVE THAT NOTICE DISPATC HED ON 30 TH OCTOBER, 2006 AT 12.12. P.M WAS SERVED UPON ASSESSE E BY 31 ST OCTOBER, 2006. THEREFORE, JURISDICTION ASSUMED BY T HE A.O. BASED UPON NOTICE DATED 27 TH OCTOBER, 2006 BY REGISTERED POST, IS INVALID. IT APPEARS THAT A.O. SOUGHT TO SERVE TH E NOTICE AS PER ORDER-V, RULE-20 CPC BECAUSE THE NOTICE SERVER AND THE INSPECTOR STATED THAT SERVICE OF AFFIXTURE WAS DONE UNDER THE ORDER OF THE I.T.O. HOWEVER, THERE IS NO ORDER OF T HE I.T.O. IN THE DEPARTMENT ASSESSMENT RECORD WHICH COULD BE VERIFIE D FROM THE RECORD. THE A.O. HAS NOT PROVIDED ANY SUCH ORDER IN HIS REMAND REPORT. THE SERVICE BY AFFIXTURE IS INVALID BECAUSE THE PROCEDURE 12 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI OF THE SUBSTITUTE SERVICE HAVE NOT BEEN FOLLOWED BY THE A.O. THE SATISFACTION OF THE A.O. IS NOWHERE AVAILABLE ON RE CORD AS PER ORDER-V, RULE-20 CPC FOR THE PURPOSE OF SERVING NOT ICE THROUGH AFFIXTURE. THEREFORE, CONDITIONS OF ORDER-V, RULE-2 0 CPC HAVE NOT BEEN FULFILLED. THERE IS NO PROOF AVAILABLE ON RECORD IF THE NOTICE SERVER HAS MADE ANY ATTEMPT TO SERVE THE NOT ICE ON ASSESSEE PERSONALLY. NO AFFIDAVIT OF NOTICE SERVER HAVE BEEN BROUGHT ON RECORD FOR COMPLYING WITH THE PROVISIONS OF LAW. THEREFORE, SERVICE OF NOTICE THROUGH AFFIXTURE IS B AD IN LAW. THE ASSESSEE RAISED OBJECTION REGARDING SERVICE OF THE NOTICE AT THE ASSESSMENT STAGE. BUT EVEN IF IT IS ASSUMED THAT IT WAS NOT RAISED, IT DOES NOT OPERATE AGAINST THE ASSESSEE AS SECTION 292BB OF THE ACT IS PROSPECTIVE IN NATURE AS HELD B Y THE HONBLE DELHI HIGH COURT IN THE CASE OF MANI KAKKAR 18 DTR 145 AND BY THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF KUBER TOBACCO PRODUCTS PVT. LTD., 120 TTJ 577 (DEL.). THE ASSESSEE RAISED THE ISSUE OF NON-SERVICE OF THE NOTICE UNDER SECTION 143(2) AT ASSESSMENT STAGE ITSELF BY SENDING THE OBJECTION S THROUGH REGISTERED POST AS WELL AS BY UPC WHICH THE ASSESSE E SOUGHT TO 13 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI ADMIT AS ADDITIONAL EVIDENCES. THE ASSESSEE SUBMITT ED THAT SINCE THE PROVISIONS OF ORDER-V, RULE-20 CPC HAVE N OT BEEN STRICTLY COMPLIED WITH, SERVICE OF NOTICE UNDER SEC TION 143(2) BY AFFIXTURE WAS INVALID AND THERE BEING NO EVIDENCE O N RECORD TO SHOW THAT NOTICE SENT BY REGISTERED POST WAS SERVED UPON THE ASSESSEE, THE ASSESSMENT WAS LIABLE TO BE QUASHED. IT IS THE DUTY OF THE A.O. TO MAKE DILIGENT EFFORTS IN FINDING-OUT THE ASSESSEE AND IN MAKING SERVICE UPON HIM EITHER IN PERSON OR BY REGISTERED POST ACKNOWLEDGMENT DUE AT CORRECT ADDRE SS ONLY. THE REPORT OF THE INSPECTOR DISCLOSES THAT FIRST TI ME EFFORT WAS MADE ON 30 TH OCTOBER, 2006 AND THAT TOO AT INCORRECT ADDRESS. THEREFORE, NO EFFORT WAS MADE TO SERVE THE NOTICE U PON THE ASSESSEE PERSONALLY. THE ASSESSEE RELIED UPON THE D ECISIONS OF THE JURISDICTIONAL DELHI BENCH IN THE CASES OF RAM SINGH MATHUR VS. ITO 112 TTJ 989 (DEL.), CHANDRA AGENCIES VS. ITO 89 ITD 1 (DEL.) AND DECISION OF CALCUTTA HIGH COURT IN THE CASE OF RAMESWAR SIRKAR VS. ITO 88 ITR 374 (CAL.) (HC) A ND DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF KIRAN MACHINES VS. ITO 295 ITR 4 (MADRAS) (HC) AND ETC. 14 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI 9. THE LD. CIT(A) AS REGARDS THE ADDITIONAL EVIDEN CES FOUND THAT ASSESSEE HAS FILED COPY OF THE LETTER SE NT BY REGISTERED POST TO THE A.O. AND IN SUPPORT OF IT, FILED COPY O F THE REGISTER RECEIPT. BOTH THESE WERE PROVIDED TO THE A.O. FOR H IS COMMENTS. IN FACT, REGISTERED RECEIPT IS THE RECORD OF THE PO ST OFFICE AND THE LETTER OF THE ASSESSEE IS ALREADY PART OF THE ASSES SMENT RECORD. THE LD. CIT(A), ACCORDINGLY, ADMITTED THE ADDITIONA L EVIDENCES. WE MAY NOTE HERE THAT AS REGARDS ADMISSION OF THE A DDITIONAL EVIDENCES, THERE IS NO CHALLENGE TO THE SAME IN THE DEPARTMENTAL APPEAL. 10. THE LD. CIT(A) AS REGARDS THE SERVICE OF THE N OTICE UNDER SECTION 143(2) WITHIN THE PERIOD OF LIMITATIO N NOTED THAT INCOME TAX IS A FISCAL STATUTE AND ITS PURPOSE IS T O COLLECT REVENUE FOR THE STATE. THEREFORE, THE PROCEDURAL IR REGULARITY ARE NOT TREATED AS FATAL. THE LD. CIT(A) ALSO NOTED THA T THE POSTAL RECEIPT SHOWS THAT NOTICE WAS DISPATCHED ON 30 TH OCTOBER, 2006, THEREFORE, IT IS DEEMED TO HAVE BEEN SERVED IN THE ORDINARY COURSE OF BUSINESS. THE LD. CIT(A) ALSO NOTED THAT A.O. HAS 15 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI TAKEN PRECAUTIONARY MEASURE ALSO TO SERVE THE NOTIC E BY AFFIXTURE. IN VIEW OF THESE FACTS, THE LD. CIT(A) H ELD THAT NOTICE WAS SERVED WITHIN TIME. THEREFORE, ASSESSMENT PROCE EDINGS WERE HELD AS VALID AND THIS GROUND OF APPEAL OF ASS ESSEE WAS DISMISSED. 11. THE ASSESSEE IN THE CROSS-OBJECTION CHALLENGED THE FINDINGS OF THE LD. CIT(A) THAT NOTICE UNDER SECTIO N 143(2) HAVE BEEN SERVED WITHIN THE STATUTORY PERIOD. 12. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF B OTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. LEA RNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. 13. ON THE OTHER HAND, LD. D.R. RELIED UPON THE OR DER OF THE LD. CIT(A) AND ALSO FILED COPY OF THE ORDER SHE ET FROM 19 TH APRIL, 2010 TO 14 TH MAY, 2010, WHICH ARE NOT RELEVANT TO THE MATTER IN ISSUE. 16 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI 14. IT IS WELL SETTLED ACCORDING TO PROVISO TO SEC TION 143(2) OF THE I.T. ACT, NO NOTICE UNDER CLAUSE (II) SHALL BE SERVED UPON THE ASSESSEE AFTER EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN IS FURNISHED. IN THIS CAS E, ASSESSEE FILED RETURN OF INCOME ON 31 ST OCTOBER, 2005. THEREFORE, THE NOTICE UNDER SECTION 143(2)(II) COULD HAVE BEEN SER VED UPON THE ASSESSEE ON OR BEFORE 31 ST OCTOBER, 2006. THE A.O. IN THE ASSESSMENT ORDER DID NOT MENTION AS TO WHEN THE NOT ICE UNDER SECTION 143(2) HAVE BEEN SERVED UPON THE ASSESSEE T HROUGH POST. THE A.O. IN THE ASSESSMENT ORDER ALSO DID NOT MENTION AS TO WHETHER ASSESSEE HAS BEEN SERVED WITH THE NOTICE THROUGH AFFIXTURE THROUGH THE PROCESS SERVER OF THE DEPARTM ENT. THE ASSESSEE FILED COPY OF THE NOTICE UNDER SECTION 143 (2) DATED 27 TH OCTOBER, 2006 WHICH WERE DISPATCHED ON 30 TH OCTOBER, 2006 AT 12.12 P.M. AND SERVED/RECEIVED ON 2 ND NOVEMBER, 2006. THE SUBMISSION OF THE ASSESSEE AND RELEVANT DOCUMENTS W ERE FORWARDED TO THE A.O. FOR FILING THE REMAND REPORT. HOWEVER, THERE IS NO REBUTTAL FROM THE SIDE OF THE A.O. TO D ISPUTE THE ABOVE STATEMENT OF THE ASSESSEE. IT IS, THEREFORE, AN ADMITTED 17 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI FACT THAT THOUGH THE NOTICE UNDER SECTION 143(2) DA TED 27 TH OCTOBER, 2006, WAS ISSUED BUT IT WAS DISPATCHED ONL Y ON 30 TH OCTOBER, 2006 AT 12.12 PM AND SERVED UPON ASSESSEE ON 2 ND NOVEMBER, 2006. THE ASSESSEE ALSO FILED ADDITIONAL EVIDENCES BEFORE LD. CIT(A) WITH REGARD TO THE FACT THAT ASSE SSEE CHALLENGED THE SERVICE OF THE NOTICE UNDER SECTION 143(2) THROUGH LETTER WHICH WAS SENT BY REGISTERED POST AN D THE UPC. THE ASSESSEE HIGHLIGHTED IN THESE ADDITIONAL EVIDEN CES THAT NOTICE UNDER SECTION 143(2) HAVE NOT BEEN SERVED UP ON THE ASSESSEE WITHIN THE PERIOD PRESCRIBED UNDER THE LAW . THE ADDITIONAL EVIDENCES WERE REFERRED TO THE A.O. FOR FILING THE REMAND REPORT. THE LD. CIT(A) ADMITTED THE ADDITION AL EVIDENCES AND ALSO NOTED IN HIS FINDINGS LETTER OF THE ASSESS EE IS ALREADY PART OF THE RECORD. IT WOULD MEAN THAT THE ASSESSEE AFTER RECEIPT OF THE NOTICE UNDER SECTION 143(2) BELATEDLY ON 2 ND NOVEMBER, 2006 MADE A REPRESENTATION TO THE A.O. SUBMITTING T HEREIN THAT NOTICE UNDER SECTION 143(2) HAVE NOT BEEN SERVED UP ON THE ASSESSEE WITHIN THE STATUTORY PERIOD. THE LD. CIT(A ) ALSO REPRODUCED THE RELEVANT PORTION OF LETTER IN PARA 3 .4 OF THE 18 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI IMPUGNED ORDER. THE A.O. DID NOT DISCUSS THE OBJECT ION OF THE ASSESSEE CHALLENGING THE SERVICE OF THE NOTICE UNDE R SECTION 143(2) IN THE ASSESSMENT ORDER. THERE IS NO CHALLEN GE TO THE ADMISSION OF THE ADDITIONAL EVIDENCES BY THE LD. CI T(A) IN THE GROUNDS OF APPEAL RAISED BY THE REVENUE BEFORE THE TRIBUNAL. SINCE THERE IS NO REBUTTAL TO THE OBJECTIONS OF THE ASSESSEE SUPPORTED BY THE RELEVANT OR COGENT MATERIAL, THERE FORE, IT IS ESTABLISHED ON RECORD THAT THE NOTICE DATED 27 TH OCTOBER, 2006 ISSUED UNDER SECTION 143(2), WAS DISPATCHED ON 30 TH OCTOBER, 2006 AT 12.12 PM, WAS DELIVERED TO THE ASSESSEE ON 2 ND NOVEMBER, 2006. THEREFORE, IT IS CLEARLY SERVED UPO N THE ASSESSEE AGAINST THE PROVISIONS CONTAINED IN PROVIS O TO SECTION 143(2)(II) OF THE I.T. ACT, 1961. THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. LUNAR DIAMONDS LTD., (2006) 281 ITR 1 (DEL.) HELD AS UNDER: THE ASSESSEE FILED ITS RETURN FOR THE ASSESSMENT Y EAR 1995-96 ON NOVEMBER 29, 1995. ON APPEAL BEFORE THE COMMISSIONER (APPEALS) IT WAS CONTENDED BY THE ASSESSEE THAT IT HAD NOT RECEIVED ANY NOTICE UNDER 19 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI SECTION 143(2) OF THE INCOME TAX A CT, 1961, BY REGISTERED POST. AN AFFIDAVIT TO THIS EFFECT WAS FI LED. IT WAS CONTENDED THAT THE RECEIPT ISSUED BY THE POST OFFICE DID NOT BEAR THE ADDRESS OF THE ASSESSEE BUT ONLY ITS NAME. IT WAS, THEREFORE, SUBMITTED THAT THERE W AS A POSSIBILITY THAT THE CORRECT ADDRESS OF THE ASSESSE E MIGHT NOT HAVE BEEN WRITTEN ON THE ENVELOPE AND, THEREFORE, THE QUESTION OF SERVICE OF NOTICE ON THE ASSESSEE DID NOT ARISE. THE CONTENTION OF THE ASSES SEE WAS ACCEPTED BY THE COMMISSIONER (APPEALS) AND IT WAS HELD THAT THERE WAS NO VALID SERVICE OF NOTICE ON THE ASSESSEE AND, THEREFORE, THE ASSESSMENT FRAMED WAS INVALID. THIS WAS UPHELD BY THE TRIBUNAL. ON APPEAL TO THE HIGH COURT: HELD, DISMISSING THE APPEAL, THAT THE ASSESSEE HAD FILED AN AFFIDAVIT STATING THAT IT HAD NOT RECEIVED THE NOTICE AND THE TRIBUNAL RIGHTLY HELD THAT UNDER THE SE CIRCUMSTANCES, THE BURDEN WAS UPON THE DEPARTMENT TO PROVE THAT NOTICE WAS SERVED UPON THE ASSESSEE WITHIN THE PRESCRIBED TIME. THE DEPARTMENT HAD FAIL ED TO PROVE ITS CASE IN THIS REGARD. THE TRIBUNAL WAS RIGHT IN SETTING ASIDE THE ORDER OF ASSESSMENT. NO SUBSTANTIAL QUESTION OF LAW AROSE FROM ITS ORDER. 20 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI 14.1. THE HONBLE PUNJAB & HARYANA HIGH COURT IN T HE CASE OF CIT VS. CEBON INDIA LTD., (2012) 347 ITR 58 3 (P&H) HELD AS UNDER: THE ASSESSEE'S RETURN FOR THE ASSESSMENT YEAR 1996 - 97 ON NOVEMBER 30, 1996, WAS PROCESSED UNDER SECTION 143(1)(A) OF THE INCOME-TAX ACT, 1961, ON M AY 30,1997, AND ASSESSMENT WAS FRAMED UNDER SECTION 144 OF THE ACT AND AFFIRMED IN APPEAL. THE TRIBUNAL REMANDED THE MATTER TO THE COMMISSIONER (APPEALS). THE COMMISSIONER (APPEALS) IN THE SECOND ROUND, ALLOWED THE APPEAL ON THE GROUND THAT THERE WAS NO EVIDENCE TO SHOW THAT NOTICE UNDER SECTION 143(2) O F THE ACT HAD BEEN SERVED ON THE ASSESSEE BEFORE NOVEMBER 30, 1997, I.E., WITHIN ONE YEAR OF THE FIL ING OF THE RETURN. THEREFORE, HE HELD THE ASSESSMENT VO ID. THIS FINDING WAS AFFIRMED BY THE TRIBUNAL. ON APPEA L: HELD, DISMISSING THE APPEAL, THAT A CONCURRENT FIND ING HAD BEEN RECORDED BY THE COMMISSIONER (APPEALS) AND THE TRIBUNAL ON THE QUESTION OF DATE OF SERVICE OF NOTICE. THE NOTICE WAS NOT SERVED WITHIN THE STIPUL ATED TIME. MERE GIVING OF DISPATCH NUMBER WOULD NOT REND ER THE FINDING PERVERSE. IN THE ABSENCE OF NOTICE BEIN G SERVED, THE ASSESSING OFFICER HAD NO JURISDICTION T O 21 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI MAKE ASSESSMENT. ABSENCE OF NOTICE WAS NOT CURABLE UNDER SECTION 292BB OF THE ACT. 15. IN THE PRESENT CASE, THE A.O. WAS HAVING NO PR OOF OF SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT U PON THE ASSESSEE ON OR BEFORE 31 ST OCTOBER, 2006. THE LD. CIT(A) NOTED IN HIS FINDINGS THAT INCOME TAX ACT IS A FISCAL STA TUTE AND ITS PURPOSE IS TO COLLECT REVENUE FOR THE STATE. THEREF ORE, THE PROCEDURAL IRREGULARITY ARE NOT TREATED AS FATAL. T HE LD. CIT(A) FAILED TO NOTE THAT THE NOTICE UNDER SECTION 143(2) IS A JURISDICTIONAL NOTICE. UNLESS THE SAME IS SERVED UP ON THE ASSESSEE WITHIN THE STATUTORY PERIOD PRESCRIBED UND ER THE LAW, NO ASSESSMENT COULD BE MADE UPON THE ASSESSEE. THER EFORE, IT GOES TO THE LEGALITY OF THE ASSESSMENT ITSELF. HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS. PAWAN GUPTA 318 ITR 32 2 HELD THAT IF AN ASSESSMENT ORDER IS PASSED IN SUCH A SITUATIO N WITHOUT COMPLYING WITH SECTION 143(2), IT WOULD BE INVALID AND NOT BE MERELY IRREGULAR. THEREFORE, FINDINGS OF THE LD. CIT(A) ARE INCORRECT AND AGAINST THE PROVISIONS OF LAW. 22 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI 15.1. THE LD. CIT(A) ALSO NOTED IN HIS FINDINGS TH AT THE A.O. HAS SERVED ANOTHER NOTICE UNDER SECTION 143(2) AS A PRECAUTIONARY MEASURE BY AFFIXTURE ALSO. SUCH A FIN DING IS ALSO AGAINST THE PROVISION OF LAW BECAUSE NO NOTICE COUL D BE ISSUED AS PRECAUTIONARY MEASURE BECAUSE IT HAS TO BE SERVE D IN ACCORDANCE WITH LAW AS PRESCRIBED UNDER THE ACT. TH E A.O. DID NOT MENTION IN THE ASSESSMENT ORDER THAT HE HAS SER VED ANY NOTICE UNDER SECTION 143(2) UPON ASSESSEE THROUGH A FFIXTURE. IT HAS COME FOR THE FIRST TIME IN THE REMAND REPORT OF THE A.O. BEFORE LD. CIT(A). IT IS NOT EXPLAINED WHY NOTICE W AS SENT THROUGH THE PROCESS SERVER ON THE SAME DAY OF DISPA TCH ON 30 TH OCTOBER, 2006 FOR AFFIXTURE WHEN IT WAS ALSO DISPAT CHED BY REGISTERED POST. THE A.O. DID NOT TAKE ANY STEP TO SERVE THE NOTICE UPON ASSESSEE PERSONALLY THROUGH ORDINARY PR OCESS. IT MAY BE NOTED THAT IT WAS A ONE DAY PRIOR TO THE LAS T DATE WHEN NOTICE WAS DISPATCHED ON 30 TH OCTOBER, 2006. THERE IS NO ORDER AVAILABLE ON RECORD OF THE ASSESSMENT IF THE A.O. H AS AUTHORISED THE PROCESS SERVER OF THE DEPARTMENT TO SERVE THE A SSESSEE BY AFFIXTURE AND NO REASONS HAVE BEEN ASSIGNED IN THE NOTICE SENT 23 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI FOR SERVICE THROUGH AFFIXTURE WITHOUT FOLLOWING THE PROCEDURE PROVIDED UNDER THE ACT. THE PROCEDURE FOR SUBSTITUT ED SERVICE THROUGH AFFIXTURE HAVE BEEN PROVIDED UNDER ORDER-V, RULE-20 CPC AND THE SAME READS AS UNDER : 20. SUBSTITUTED SERVICE . (!) WHERE THE COURT IS SATISFIED THAT THERE IS REASON TO BELIEVE THAT THE DEFENDANT IS KEEPING OUT OF THE WAY FOR THE PURPOSE OF AVOIDI NG SERVICE, OR THAT FOR ANY OTHER REASON THE SUMMONS C ANNOT BE SERVED IN THE ORDINARY WAY, THE COURT SHALL ORDE R THE SUMMONS TO BE SERVED BY AFFIXING A COPY THEREOF IN SOME CONSPICUOUS PLACE IN THE COURT-HOUSE, AND ALSO UPON SOME CONSPICUOUS PART OF THE HOUSE (IF ANY) IN WHIC H THE DEFENDANT IS KNOWN TO HAVE LAST RESIDED OR CARRIED ON BUSINESS OR PERSONALLY WORKED FOR GAIN, OR IN SUCH OTHER MANNER AS THE COURT THINKS FIT. [(1A) WHERE THE COURT ACTING UNDER SUB-RULE (1) ORD ERS SERVICE BY AN ADVERTISEMENT IN A NEWSPAPER, THE NEWSPAPER SHALL BE A DAILY NEWSPAPER CIRCULATING IN THE LOCALITY IN WHICH THE DEFENDANT IS LAST KNOWN TO HA VE ACTUALLY AND VOLUNTARILY RESIDED, CARRIED ON BUSINE SS OR PERSONALLY WORKED FOR GAIN.] 24 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI (2) EFFECT OF SUBSTITUTED SERVICE . SERVICE SUBSTITUTED BY ORDER OF THE COURT SHALL BE AS EFFECTUAL AS IF IT HAS BEE N MADE ON THE DEFENDANT PERSONALLY . 15.2. BEFORE ADOPTING THE MODE TO SERVE THE ASSESS EE THROUGH AFFIXTURE, THE A.O. SHOULD BE SATISFIED THA T THERE IS A REASON TO BELIEVE THAT ASSESSEE IS KEEPING OUT OF W AY FOR THE PURPOSE OF AVOIDING SERVICE OR THAT FOR ANY OTHER R EASON THE NOTICE CANNOT BE SERVED IN THE ORDINARY WAY, THE A. O. SHALL ORDER THE NOTICE TO BE SERVED BY AFFIXTURE A COPY THEREOF IN SOME CONSPICUOUS PLACE IN THE COURT HOUSE AND ALSO UPON SOME CONSPICUOUS PART OF THE HOUSE IN WHICH THE ASSESSEE IS KNOWN TO HAVE LAST RESIDED OR CARRIED ON BUSINESS OR PERS ONAL WORK FOR GAIN OR ANY SUCH OTHER MANNER AS THE A.O. THINKS FI T. 15.3. HOWEVER, NO SUCH SATISFACTION HAS BEEN ARRIV ED AT BY THE A.O. IN THIS CASE AND NOTHING IS RECORDED, IF T HE ASSESSEE WAS KEEPING OUT THE WAY FOR THE PURPOSE OF AVOIDING THE SERVICE OF THE NOTICE OR THAT THE NOTICE COULD NOT BE SERVE D UPON THE ASSESSEE IN AN ORDINARY WAY. THE SUBSTITUTE SERVICE THROUGH AFFIXTURE WOULD NOT BE VALID UNLESS THE CONDITIONS OF ORDER-V, 25 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI RULE-20 CPC ARE SATISFIED. THE PROCESS SERVER DID N OT MAKE ANY ATTEMPT TO SERVE THE NOTICE TO THE ASSESSEE PERSONA LLY. THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF RAMESWAR SIRKAR VS. ITO (1973) 88 ITR 374 (CAL.) HELD AS UNDER : THE SERVICE OF NOTICE UNDER SECTION 148 IS MANDATOR Y AND IS A CONDITION PRECEDENT FOR THE INITIATION OF REASS ESSMENT PROCEEDINGS. THE MERE FACT THAT THE SERVING OFFICER DID NOT FIND THE ASSESSEE TO BE SERVED WITH THE NOTICE AT HI S ADDRESS IS NOT SUFFICIENT TO ESTABLISH THAT HE COULD NOT BE FOUND. IT MUST BE SHOWN NOT ONLY THAT THE SERVING OF FICER WENT TO THAT PLACE AT A REASONABLE TIME WHEN THE AS SESSEE WAS EXPECTED TO BE PRESENT, BUT ALSO THAT IF HE WAS NOT FOUND, PROPER AND REASONABLE ATTEMPTS HAD BEEN MADE TO FIND HIM EITHER AT THAT ADDRESS OR ELSEWHERE. A NOTI CE BY AFFIXTURE WITHOUT REASONABLE ATTEMPTS TO FIND THE AS SESSEE IS NOT A PROPER NOTICE. 15.4. THE HONBLE MADRAS HIGH COURT IN THE CASE OF KIRAN MACHINES VS. ITO & ANOTHER (2007) 295 ITR 4 (MAD.) (HC) HELD AS UNDER : HELD THAT IN THIS CASE, ADMITTEDLY, THE A.O. HAD NO T RECORDED ANY SATISFACTION IN HIS ORDER THAT NOTICE CO ULD NOT BE SERVED PERSONALLY, BEFORE CAUSING SERVICE OF NOT ICE BY 26 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI AFFIXTURE. UNDER ORDER 5, RULE 20(1 A), THE ASSESSING OFFICER COULD HAVE ORDERED PUBLICATION IN A NEWSPAP ER IF THE ADDRESS OF THE PETITIONER WAS NOT KNOWN OR COUL D NOT BE FURNISHED BY HIS REPRESENTATIVE. BUT THAT TOO HA D NOT BEEN DONE IN THIS CASE. WHEN AN ORDER OF ASSESSMENT LEVYING TAX IS BEING PASSED, IT IS INCUMBENT UPON T HE ASSESSING OFFICER TO SERVE THE NOTICE IN ACCORDANCE WITH THE PROVISIONS. BUT IN THIS CASE, THAT HAD NOT BEEN DONE. THUS, THE PRINCIPLES OF NATURAL JUSTICE HAD BEEN VI OLATED AND ON THIS GROUND, THE ASSESSMENT ORDER WAS LIABLE T O BE SET ASIDE. 15.5. SINCE THE CONDITIONS OF ORDER-V, RULE-20 CPC HAVE NOT BEEN SATISFIED IN THIS CASE, THEREFORE, SERVICE THROUGH AFFIXTURE, IS INVALID AND BAD IN LAW. THERE IS NO O THER EVIDENCE AVAILABLE ON RECORD TO PROVE THAT ASSESSEE HAS BEEN SERVED WITH NOTICE UNDER SECTION 143(2) WITHIN THE STATUTORY PE RIOD. IT WAS THE PRESUMPTION OF THE AUTHORITIES BELOW THAT ASSES SEE HAS BEEN SERVED WITH NOTICE THROUGH REGISTERED POST IN ORDIN ARY COURSE OF BUSINESS. IT WAS THE PRESUMPTION OF THE A.O. THAT N OTICE HAS BEEN SERVED UPON THE ASSESSEE, WHICH IS REBUTTED BY THE ASSESSEE THROUGH EVIDENCE AND MATERIAL ON RECORD. T HE PRESUMPTION CANNOT TAKE PLACE OF LEGAL PROOF PARTIC ULARLY WHEN 27 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI THE NOTICE THROUGH REGISTERED POST WAS DISPATCHED O NLY 30 TH OCTOBER, 2006 AND AS PER LAW IT HAS TO BE SERVED ON OR BEFORE 31 ST OCTOBER, 2006. THE A.O. IN THE REMAND REPORT HAS R EFERRED TO PROVISIONS OF SECTION 292BB OF THE FINANCE ACT, 2008 IN SUPPORT OF HIS CONTENTION THAT WHEN ASSESSEE APPEAR ED IN THE PROCEEDINGS BEFORE A.O, IT SHALL BE DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF THE ACT, HAS BEEN DULY SERVE D UPON HIM, IN ACCORDANCE WITH LAW AND ASSESSEE SHALL BE PRECLU DED FROM TAKING ANY OBJECTION IN ANY PROCEEDING OR ENQUIRY U NDER THIS ACT THAT NOTICE HAS NOT BEEN SERVED UPON HIM IN TIM E. IT MAY BE NOTED THAT PROVISO TO THIS SECTION PROVIDES THAT NOTHING CONTAINED IN THIS SECTION SHALL APPLY WHERE ASSESSE E HAS RAISED SUCH OBJECTION BEFORE COMPLETION OF THE ASSESSMENT OR RE- ASSESSMENT. IN THE PRESENT CASE, THE ASSESSEE HAS RAISED OBJECTION IN WRITING REGARDING SERVICE OF THE NOTIC E UNDER SECTION 143(2) WITHIN THE STATUTORY PERIOD AT THE ASSESSMEN T STAGE ITSELF. THEREFORE, SUCH PROVISION WOULD NOT APPLY AGAINST T HE ASSESSEE. FURTHER, SECTION 292BB OF THE ACT, WOULD NOT OPERAT E AGAINST THE ASSESSEE, AS SECTION 292BB HAS BEEN INSERTED IN TO THE 28 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI STATUTE BY FINANCE ACT, 2008 W.E.F. 01.04.2008 AND IT HAS BEEN HELD AS PROSPECTIVE IN NATURE BY THE HONBLE JURISD ICTIONAL DELHI HIGH COURT IN THE CASE OF CIT VS. MANI KAKKAR 18 DT R 145 (DEL.) (HC)/178 TAXMAN 315 AND BY SPECIAL BENCH OF THE DEL HI TRIBUNAL IN THE CASE OF KUBER TOBACCO PRODUCTS PVT. LTD., VS. CIT (2009) 120 TTJ 577 (DEL.) (S.B) (TRIBU.). THERE FORE, SUCH OBJECTION OF THE A.O. IS ALSO INVALID. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF MATERIAL ON RECORD AND DISCUSS ION ABOVE, IT IS CLEAR THAT THE THEORY OF SERVICE THROUGH AFFIXTU RE WAS AN AFTERTHOUGHT AND MANIPULATED BY THE A.O. THERE WAS NO EVIDENCE ON RECORD TO PROVE THAT ASSESSEE HAS BEEN SERVED WITH THE NOTICE UNDER SECTION 143(2) WITHIN THE PERIOD O F LIMITATION AND THE ALLEGED SERVICE OF THE NOTICE THROUGH AFFIX TURE IS INVALID AND VOID ABINITIO ITSELF. SINCE NO NOTICE UNDER SECTION 143(2) HAVE BEEN SERVED UPON THE ASSESSEE WITHIN THE STATU TORY PERIOD, THEREFORE, THE SAME IS INVALID, CONSEQUENTLY, THE A SSESSMENT ORDER GETS VITIATED AND IS NULL AND VOID . WE, ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND QUASH THE ASSESSMENT ITSELF. THE ADDITIONS STAND DELETED. 29 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI 16. IN THE RESULT, CROSS-OBJECTION OF THE ASSESSEE ALLOWED. ITA.NO.2907/DEL./2010 A.Y. 2005-2006 (REVENUE APP EAL): 17. IN VIEW OF THE ABOVE ORDER ON CROSS-OBJECTION, WE DECIDE THE DEPARTMENTAL APPEAL BRIEFLY AS UNDER. 18. ON GROUND NOS. 1 AND 2, REVENUE CHALLENGED THE DELETION OF ADDITION OF RS.1,57,41,762 CLAIMED UNDE R SECTION 10B OF THE I.T. ACT. ACCORDING TO A.O. ASSESSEE HAS NOT CARRIED OUT MANUFACTURING ACTIVITY OF HIS OWN BUT HAS PURCH ASED HOT MIX MASALA WHICH IS EXPORTED AND CLAIMED EXEMPTION UNDER SECTION 10B OF THE I.T. ACT. 19. ON THE OTHER HAND, THE CASE OF THE ASSESSEE IS THAT IT CARRIED OUT MANUFACTURING ACTIVITY WHICH WAS SUPPOR TED BY CONTEMPORARY EVIDENCES. THE ASSESSEE SUBMITTED THAT OBJECTION RAISED BY THE REVENUE, WERE REPLIED WITH EVIDENCES BY THE ASSESSEE, WHICH WERE NOT CONSIDERED BY A.O. THE ASS ESSEE, THEREFORE, PLEADED THAT DEDUCTION UNDER SECTION 10B OF THE ACT MAY BE ALLOWED. THE WRITTEN SUBMISSIONS OF THE ASSE SSEE IS REPRODUCED IN THE APPELLATE ORDER IN WHICH ASSESSEE BRIEFLY 30 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI EXPLAINED THAT ASSESSEE WAS IN THE BUSINESS OF MANU FACTURING OF HOT MIX MASALA AND EXPORTED THE SAME AFTER MANUF ACTURING, WHICH IS PROVED BY DOCUMENTARY EVIDENCE LIKE AUDITE D BALANCE- SHEET, REGISTRATION UNDER CENTRAL EXCISE, DETAILS O F THE STOCK, MANUFACTURING PROCESS, INSTALLED CAPACITY OF GRINDI NG MACHINE AND THE PRODUCTION DONE BY ASSESSEE, EXPLAINING MAN UFACTURING ACTIVITY, PAYMENT OF VISIT AND INSPECTION CHARGES O F EXCISE OFFICIALS ETC., WHICH ARE NOTED IN DETAIL, IN THE A PPELLATE ORDER. THE ASSESSEE ALSO MOVED APPLICATION FOR ADMISSION O F ADDITIONAL EVIDENCE, WHICH WERE, CHALLAN FROM THE SUPPLIER OF THE MACHINERY WITH COPY OF THE BILL OF MACHINERY, CONFI RMATION FOR PAYMENT OF ELECTRICITY CHARGES, GENSET BILL, LAB RE PORT REGARDING THE WASTAGE, ANNUAL RETURN ATTESTED BY CENTRAL EXCI SE DEPARTMENT, MONTHLY RETURN FILED WITH EXCISE AUTHOR ITIES SHOWING MANUFACTURING WITH COPY OF THE DAILY STOCK REGISTER, REGISTER SHOWING IMPORT OF GOODS RECEIVED BY ASSESS EE IN HIS FACTORY AND CHECK LIST FOR EXPORT PREPARED AT THE T IME OF DISPATCH OF GOODS FOR EXPORT CERTIFIED BY THE CENTRAL EXCISE OFFICER. THE ASSESSEE PLEADED THAT NO PROPER OPPORTUNITY WAS GIV EN BY THE 31 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI A.O. THEREFORE, THESE ADDITIONAL EVIDENCES WERE ADM ITTED BY THE LD. CIT(A) FOR ADJUDICATING THE APPEAL. THE LD. CIT (A) CONSIDERING THE DETAILED EVIDENCES ON RECORD FURNIS HED BY THE ASSESSEE, IN THE LIGHT OF REMAND REPORT OF THE A.O, DELETED THE ENTIRE ADDITION AND ALLOWED EXEMPTION UNDER SECTION 10B OF THE ACT, TO THE ASSESSEE. THE FINDINGS OF THE LD. CIT(A ) IN PARA 4.7 OF THE ORDER ARE REPRODUCED AS UNDER : 4.7. I HAVE CONSIDERED THE FACTS OF THE CASE AND HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER, WRITTEN SUBMISSIONS AND PAPER BOOKS FILED BY THE APPELLANT. THE ISSUE IN DISPUTE IS RELATING TO DISALLOWANCE OF DED UCTION UNDER SECTION 10B OF THE IT ACT, 1961 WITH THE OBSE RVATION THAT THE ASSESSEE WAS NOT MANUFACTURING THE PRODUCT S EXPORTED BUT HAS PROCURED AND PURCHASED AND THEN EXPORTED IT. MY OBSERVATIONS ON THIS ISSUE ARE AS U NDER : (I) ON PERUSAL OF PAPER BOOK, WHICH SHALL BE CALLED HEN CE FORTHWITH, IN SHORT AS PB, ON PAGE 17, THERE IS A NOTE TO THE BALANCE SHEET THAT THE APPELLANT WAS REGISTERED UND ER 32 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI CENTRAL EXCISE. IT IS FURTHER NOTICED THAT INSPECTI ON CHARGES HAVE BEEN PAID IN CONNECTION WITH THE VISIT OF THE EXCISE OFFICIALS AS IS EVIDENT FROM PB 138-141. THE MANUFA CTURING PROCESS HAS BEEN OUTLINED BY THE APPELLANT TO THE A SSESSING OFFICER, WHICH IS AT PB-88. I ALSO FIND THAT EXCISE RECORDS HAVE BEEN VERIFIED BY THE EXCISE OFFICIALS AND SUCH RECORDS BEAR THE SIGNATURE OF EXCISE OFFICIALS, WHICH CLEAR LY ESTABLISH THAT ASSESSEE WAS A MANUFACTURER OF HOT MIX MASALA. (II) THE APPELLANT HAS CONSISTENTLY PLEADED (PB-89) THAT APPELLANT WAS MANUFACTURING HOT MIX MASALA AND THAT THERE WAS ADEQUATE INSTALLED CAPACITY OF THE GRINDI NG MACHINE AND THAT PRODUCTION OF HOT MIX MASALA WAS T O THE TUNE OF RS.149.47 TONNES (PB-122). SO MUCH SO, THE APPELLANT GAVE DETAILED EXPLANATION REGARDING THE MANUFACTURING ACTIVITY UNDERTAKEN AND REBUTTING ALL THE OBJECTIONS OF THE AO. (III) I FIND THAT THE AOS OBSERVATION THAT ASSESSEE PURCHASED GRINDING MACHINE ON 11.06.2004 IS FACTUAL LY NOT CORRECT, IN VIEW OF THE CHALLAN OF THE MACHINE WHIC H SHOWS 33 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI THAT THE MACHINE WAS RECEIVED ON 01.06.2004 AND NOT ON 11.6.2004. IN FACT, ON 11.06.2004, THE INVOICE RELA TING TO THE SALE OF THE MACHINE WAS MADE AND THAT IS HOW AO REC ORDED A FINDING AS TO HOW HOT MIX MASALA COULD BE MANUFAC TURED PRIOR TO THAT DATE. ON THE CONTRARY, IT IS ESTABLIS HED THAT MACHINE WAS SUPPLIED TO THE APPELLANT ON 01.06.2004 AND PRODUCTION WAS MADE FROM 02.06.2004. (IV) THE APPELLANT HAS SUBMITTED THAT THE GENERATOR WAS HIRED AND HIRE CHARGES WAS COMPOSITE ONE INCLUDING THE CONSUMPTION OF DIESEL. THE APPELLANT HAS ALSO EXPLA INED IN ITS LETTER DATED 26.12.2007 ABOUT THE CONSUMPTION O F ELECTRICITY AND THERE IS NOTHING UNUSUAL OR ABNORMA L IN IT. HENCE, THE APPELLANT S EXPLANATION IS ACCEPTABLE I N THIS REGARD. (V) IN RESPECT OF QUANTUM OF PRODUCTION VIS-A-VIS CONSUMPTION OF ELECTRICITY, THE APPELLANT HAS SUBMI TTED THAT THE CONSUMPTION OF ELECTRICITY AS PER THE WORKING O F THE AO COMES TO 2,291 UNITS AND NOT 5,400 UNITS. IT IS FUR THER NOTICED THAT DETAILS OF WAGES WERE GIVEN TO THE AO ON 34 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI 14.12.2007 AND COPIES OF VOUCHERS WERE ALSO PRODUCE D. HENCE, I FIND NO SUBSTANCE IN THE ALLEGATION OF THE AO THAT INVESTMENT PROPOSED BEFORE DEVELOPMENT COMMISSIONER , SEZ, NOIDA WAS ESTIMATED AT RS.83.50 LAKHS WHEREAS THE ACTUAL INVESTMENT WAS MUCH LESS AS IT IS NOT NECESS ARY THAT INVESTMENT ONCE PROPOSED IS INVARIABLY TO BE MADE B Y THE ASSESSEE. IN FACT, THE APPELLANT HAS ELABORATELY RE BUTTED ALL THE CONTENTIONS OF THE AO IN ITS LETTER DATED 26.12 .2007 WHICH HAS NOT BEEN TAKEN IN TO ACCOUNT BY THE AO IN CORRECT PERSPECTIVE. (VI) ..I FURTHER FIND THAT THE AO IN HIS COMMENTS DATE D ....11/2009 HAS ADMITTED, UNDOUBTEDLY FROM THE EVIDENCES SUBMITTED BEFORE YOUR GOOD SELF IT IS EVIDENT THAT THE MANUFACTURING WAS BEING DONE AT THE PREMISES OF ASSESSEE... BUT, THEREAFTER, HE RAISED THE ISSUE THAT SINCE OTHER FIRMS WERE ALSO W ORKING FROM THE SAME PREMISES, IT RAISES IOTA OF DOUBT. HO WEVER, AFTER ADMISSION OF MANUFACTURING, I FIND NO SUBSTAN CE IN THIS OBJECTION. THE EXCISE RECORDS CLEARLY SHOW THA T THE 35 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI MANUFACTURING WAS DONE BY THE APPELLANT COMPANY AND RECORDS WERE DULY CHECKED BY EXCISE AUTHORITIES. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE , LEGAL PROVISIONS ARE HAVING REGARD TO THE EVIDENCES PLACE D, MORE PARTICULARLY THE EXCISE RECORDS EVIDENCING THE MANUFACTURING, THERE REMAINS NO DOUBT THAT THE APPE LLANT WAS MANUFACTURING HOT MIX MASALA AND THEREFORE, THE AO WAS NOT JUSTIFIED IN DENYING THE EXEMPTION U/S 10B. ACCORDINGLY, DISALLOWANCE OF EXEMPTION U/S 10B MADE BY AO IS HEREBY DELETED. 20. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE DO NOT FIND ANY MERIT IN THIS GROUNDS OF APPEAL OF THE REV ENUE. THE LD. D.R. MERELY RELIED UPON ORDER OF THE A.O. AND HAS N OT POINTED OUT ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A). T HERE IS NO CHALLENGE TO THE ADDITIONAL EVIDENCES ADMITTED BY T HE LD. CIT(A) IN THE DEPARTMENTAL APPEAL. THE ASSESSEE PRODUCED S UFFICIENT DOCUMENTARY EVIDENCES BEFORE LD. CIT(A) TO PROVE TH AT IT MANUFACTURES HOT MIX MASALA AND EXPORTS THEM AND CL AIMED 36 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI EXEMPTION UNDER SECTION 10B OF THE I.T. ACT. THE CL AIM OF ASSESSEE IS SUPPORTED BY DOCUMENTARY EVIDENCES AS W ELL AS EXCISE RECORDS CHECKED BY THE EXCISE AUTHORITIES. T HE A.O. IN THE REMAND REPORT ADMITTED THAT THE DOCUMENTS SUBMI TTED BY THE ASSESSEE BEFORE LD. CIT(A) WERE EVIDENT THAT M ANUFACTURING WAS BEING DONE AT THE PREMISES OF THE ASSESSEE. IN VIEW OF THE ADMISSION OF THE A.O. THAT ASSESSEE IS MANUFACTURIN G HOT MIX MASALA AND THEREAFTER, IT IS EXPORTED BY ASSESSEE, SUPPORTED BY DOCUMENTS, THE LD. CIT(A) CORRECTLY DELETED THE ADD ITION. GROUND NOS. 1 AND 2 OF APPEAL OF THE REVENUE ARE AC CORDINGLY DISMISSED. 21. ON GROUND NO.3, THE REVENUE CHALLENGED THE DELETION OF ADDITION OF RS.73,89,823. THE A.O. MADE THE ABOVE ADDITION BY HOLDING THAT CLAIM MADE BY ASSESSEE REG ARDING WASTE OF 46401 KG WAS NOT PROVED AND ACCORDING TO A .O. IT MUST HAVE BEEN SOLD OUTSIDE THE BOOKS OF ACCOUNT. THE AS SESSEE CHALLENGED THE ADDITION BEFORE LD. CIT(A) AND FILED THE WRITTEN SUBMISSIONS SUPPORTED BY LARGE NUMBER OF DOCUMENTS TO SHOW 37 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI THAT IT WAS A NATURAL LOSS/WASTAGE IN THE BUSINESS OF ASSESSEE. THE LD. CIT(A) ACCEPTED THE CONTENTION OF ASSESSEE AND DELETED THE ADDITION. THE FINDINGS OF THE LD. CIT(A) IN PAR AS 5.2 AND 5.3 OF THE ORDER ARE READS AS UNDER : 5.2. I HAVE CAREFULLY CONSIDERED THE ISSUE WITH REFERENCE TO ASSESSMENT ORDER AND WRITTEN SUBMISSIONS PLACED ON RECORD BY THE ASSESSEE AND I FIND THAT IN THIS BUSINESS, THERE ARE SEVERAL PROCE SSES LIKE CLEANING, STAINING, GRINDING, PACKING ETC. HEN CE, THE WASTAGE IS BOUND TO OCCUR AT EVERY STAGE. THE F ACT OF THE EXCISE RECORDS HAVING BEEN CHECKED AND VERIFIED BY THE EXCISE AUTHORITY CANNOT BE GIOSSED OVER. I FIND THAT THE APPELLANT HAD MAINTAINED THE INPUT STOCK REGISTER AND STOCK REGISTER OF FINISHED GOODS (PB 177- 190) & (PB 142- 176) AND IN VIEW OF THESE RECORDS, THERE IS NO JUSTIFIABLE GROUND FOR N OT BELIEVING THE WASTAGE. 5.3. I FURTHER FIND THAT QUANTITATIVE DETAILS WERE FILE D BEFORE THE AO AND THE COPY OF THE SAME WERE ALSO FI LED BEFORE ME. THE CHART PLACED AT PB-279 EXPLAINS THE NATURAL LOSS IN THE PROCESS OF PRODUCTION OF HOT MI X MASALA WHICH IS FURTHER SUPPORTED BY THE LABORATORY REPORT (PB-284). FURTHER, THERE IS NO EVIDENCE OF A NY 38 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI SALE OUTSIDE THE BOOKS OF ACCOUNTS AND THE BOOKS OF ACCOUNTS HAVE BEEN ACCEPTED. FURTHER, THERE IS NO FINDING IN THE ASSESSMENT ORDER REGARDING THE REJECTION OF BOOKS OF ACCOUNTS. THUS, THE ADDITION OF RS.78,89,823/- DENYING THE WASTAGE WAS NOT JUSTIFIED. THEREFORE, THE ADDITION OF RS.73,89,823/ - MADE BY THE A.O. IS HEREBY DELETED. 22. THE LD. D.R. RELIED UPON THE ORDER OF THE A.O. 23. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. 24. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVE NUE. THE EXCISE RECORDS HAVE BEEN CHECKED AND VERIFIED BY TH E EXCISE AUTHORITIES. THE LD. CIT(A) FOUND THAT ASSESSEE HAS MAINTAINED THE IN-PUT STOCK REGISTER AND STOCK REGISTER OF THE FINISHED GOODS. THEREFORE, THERE WERE NO JUSTIFICATION TO DISBELIEV E THE WASTAGE CLAIMED BY THE ASSESSEE. FURTHER, THE A.O. DID NOT REJECT THE BOOKS OF ACCOUNT OF THE ASSESSEE AND HAS NOT POINTE D OUT ANY 39 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI OF THE SPECIFIC DEFECTS IN THE BOOKS OF ACCOUNT AND RECORDS MAINTAINED BY ASSESSEE. THE ASSESSEE EXPLAINED THAT THERE IS A NATURAL LOSS IN THE PROCESS OF PRODUCTION OF HOT MI X MASALA WHICH IS SUPPORTED BY LABORATORY REPORT. FURTHER, T HERE IS NO EVIDENCE ON RECORD TO PROVE ANY SALES MADE BY ASSES SEE OUTSIDE THE BOOKS OF ACCOUNT. IN THIS VIEW OF THE MATER, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) IN DEL ETING THIS ADDITION. GROUND NO.3 OF APPEAL OF THE REVENUE IS D ISMISSED. 25. IN THE RESULT, APPEAL OF THE REVENUE IS DISMIS SED. 26. TO SUM-UP, CROSS-OBJECTION OF THE ASSESSEE IS ALLOWED AND APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (L.P. SAHU) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 16 TH FEBRUARY, 2018 VBP/- 40 ITA.NO.2907/DEL./2010 & C.O.NO.213/DEL./2010 PTC IMPEX (INDIA) PVT. LTD., DELHI COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT F BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSESSMENT. REGISTRAR : ITAT DELHI BENCHES : DELHI.