Aceon Tech E Services Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 121/DEL/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6744 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 01-12-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 10-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL SENIOR
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A : NEW DELHI) BEFORE SHRI J.S. REDDY, ACCOUNTANT MEMBER AND SHRI A.T. VARKEY, JUDICIAL MEMBER ITA NO.121 & 177/DEL./2011 (ASSESSMENT YEAR : 2006-07) M/S. ACEON-TECH-E-SERVICES PVT.LTD., VS. ITO, COMP ANY WARD 1(2), 325, GARG PLAZA, ROAD NO.44, NEW DELHI. PITAMPURA, NEW DELHI 110 034. (PAN : AAECA9436F) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K.V.S.R. KRISHNA, CA REVENUE BY : SHRI K.K. JAISWAL, SENIOR DR O R D E R PER A.T. VARKEY, JUDICIAL MEMBER : THESE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AG AINST THE ORDER OF THE CIT (APPEALS)-IV, NEW DELHI DATED 08.11.2010 AND 12.11. 2010 IN ITA NO.121/DEL/2011 & 177/DEL/2011 RESPECTIVELY FOR THE ASSESSMENT YEAR 2006-07. ITA NO.121/DEL/2011 2. GROUND NO.1 OF THE ASSESSEE IS REGARDING NON-REC EIPT OF NOTICES, ESPECIALLY NOTICE U/S 143 (2) BEFORE 30.11.2007, WHICH GROUND IF SUSTAINED, ACCORDING TO ASSESSEE, THE IMPUGNED ASSESSMENT ORDER U/S 144 BY THE AO WILL BE BARRED BY LIMITATION AND SO IT WILL BE A NULLITY IN THE EYES OF LAW. 2 ITA NO.121 & 177/DEL./2011 3. BRIEF FACTS OF THE CASE ARE THAT THE ADDRESS MEN TIONED BY THE AO IN HIS ORDER DATED 03.12.2008 IS A 9, GULMOHAR PARK, NEW DELHI -110 049 AND THE AO IN THE ABSENCE OF ANYONE REPRESENTING FROM THE PART OF ASS ESSEE PASSED ORDER U/S 144 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER THE ACT). THE AO HAS STATED THAT THE FIRST NOTICE U/S 143 (2) OF THE ACT WAS ISSUED ON 09.10.2007 FIX ING THE CASE ON 24.10.2007. AND FROM A PERUSAL OF THE AOS ORDER, IT REVEALS THAT H E HAS SENT NOTICES DATED 19.11.2007 TO AN ADDRESS IN BANGALORE, THEREAFTER ON 02.04.200 8 AGAIN TO ADDRESS IN BANGALORE AND THEREAFTER ON 30.05.2008 TO ADDRESS AT GURGAON. HO WEVER, THE ASSESSEES PLEA IS THAT IT HAS NOT RECEIVED THE NOTICES U/S 143 (2) OF THE ACT . THE SHORT QUESTION IS TO WHICH ADDRESS THE AO SENT THE NOTICE U/S 143(2) OF THE AC T BEFORE 30.11.2007; WHETHER IT WAS THE ADDRESS AS FURNISHED BY THE ASSESSEE IN ITS RET URN OF INCOME; WHETHER THE ASSESSEE HAD DULY INTIMATED THE DEPARTMENT OF ANY CHANGE IN ADDRESS, IF ANY, IS NOT DISCERNIBLE FROM A PERUSAL OF THE ORDERS OF BOTH THE AUTHORITIE S BELOW. 3. WE FIND THAT AO IN THE BODY OF HIS ORDER HAS NOT ED THE ADDRESS AS A 9, GULMOHAR PARK, NEW DELHI-110 047; HOWEVER, THEN WHY HE SENT THE NOTICE AT THE ADDRESS AT BANGALORE OR GURGAON AND FROM WHERE DID HE GET THESE ADDRESSES IS NOT UNDERSTOOD. SINCE THE ASSESSEE HAS FILED AN AFFIDA VIT STATING THAT IT HAS NOT RECEIVED THE NOTICE U/S 143 (2) OF THE ACT; AND IT IS NOT EMERGI NG FROM THE CIT (A)S ORDER AS TO WHICH ADDRESS OF THE ASSESSEE THE NOTICES WERE SENT AND SERVED BEFORE 30 TH NOVEMBER, 2007, IT HAS TO BE ADJUDICATED AFRESH; SO WE SET AS IDE THE ORDER OF THE CIT (A) AND REMAND THE MATTER BACK TO THE FILE OF THE AO, WITH A DIRECTION TO CLEARLY SPELL OUT TO WHICH ADDRESS (COMPLETE ADDRESS) THE NOTICE U/S 143 (2) WAS ISSUED TO AND SENT BEFORE 30 TH NOVEMBER, 2007 AND WHAT PROOF HE HAS IN HIS RECORD TO SHOW THAT IT WAS DULY 3 ITA NO.121 & 177/DEL./2011 SERVED UP ON THE ASSESSEE ; AND WHETHER THE SECTION 143(2) NOTICE WAS SERVED UPON THE ASSESSEE IN THE ADDRESS MENTIONED BY THE ASSESSEE I N THE RETURN OF INCOME AND AS TO WHETHER THE ASSESSEE HAD INTIMATED THE AO OF ANY CH ANGE IN ADDRESS. ALL THESE QUESTIONS NEED TO BE EXAMINED BY THE AO AND DECIDE THE ISSUE DE NOVO AS TO WHETHER THE NOTICE U/S 143 (2) HAS BEEN ISSUED AND SERVED U PON THE ASSESSEE BEFORE 30.11.2007 AND OTHER GROUNDS TOO. WE ORDER ACCORDINGLY. ITA NO.177/DEL/2011 4. SINCE THE PENALTY IS LEVIED ON THE ADDITION BASE D ON THE IMPUGNED ADDITION WHICH IS SET ASIDE BACK TO THE FILE OF AO, THE PENA LTY IMPOSED IS ALSO SET ASIDE AND REMITTED BACK TO THE AO TO AWAIT THE OUTCOME OF THE QUANTUM PROCEEDINGS IN ACCORDANCE WITH LAW. 5. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES ON THE ABOVE TERMS. ORDER PRONOUNCED IN OPEN COURT ON THIS DAY OF 2 3 RD FEBRUARY, 2016. SD/- SD/- (J.S. REDDY) (A.T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 23 RD DAY OF FEBRUARY, 2016 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-IV, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.