Ananya Portfolio Pvt Ltd, New Delhi V. ITO Ward - 2(4), New Delhi

ITA 1483/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5246 (ITAT-DELHI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 22-02-2019
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHE : SMC : NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NOS. 1483 & 1484/DEL/2019 ASSESSMENT YEARS : 2009-10 & 2010-11 M/S ANANYA PORTFOLIO PVT. LTD., 1594, MJ BUILDING, 3 RD FLOOR, SHOP NO. 3, BHAGIRATH PLACE, NEW DELHI 110 006 (PAN: AAHCA8899B) VS. ITO, WARD-2(4), NEW DELHI (APPELLANT) ( RESPONDENT) ASSESSEE BY : SH. RAVI PRATAP MALL, ADVOCATE & SH. SHAYAM SUNDER, ADVOCATE DEPARTMENT BY : SH. PRADEEP SINGH GAUTAM, SR. DR. ORDER THESE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST TH E DIFFERENT ORDERS PASSED BY THE LD. CIT(A)-I, NEW DELHI ON 10.09. 2018 & 07.9.2018 RESPECTIVELY IN RELATION TO THE ASSESSMENT YEARS 2009-10 & 2010-11. AT THE TIME OF FILING THE PRESENT APPEALS THE ASSESSEE HAS RAISED VARIOUS GROUNDS ON LEGAL ISSUE AS WELL AS ON MERITS. BUT ON 18.02.2020 , ASSESSEE HAS FILED AN APPLICATION FOR RAISING ADDITIONAL GROUNDS OF APPE AL IN BOTH THE APPEALS. FOR THE SAKE OF CONVENIENCE, THE ADDITIONAL GROUNDS RAI SED BY THE ASSESSEE ARE REPRODUCED AS UNDER:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF AO IN FRAMING THE IMPUGNED REASSESSMENT ORDER AND THAT TOO WITHOUT SERVING THE MANDATORY NOTICE U/S. 143(2) AS PER LAW. 2 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF AO IN FRAMING THE IMPUGNED REASSESSMENT ORDER WITHOUT APPRECIATING THAT THE PROCEEDINGS U/S. 147 OF THE ACT HAS BEEN INITIATED ON THE BASIS OF THE ALLEGED DOCUMENTS / INFORMATION FOUND DURING THE COURSE OF SEARCH U/S. 132(1) OF THE ACT WHICH IS IMPERMISSIBLE AS ON THE BASIS OF SUCH DOCUMENT / INFORMATION, ONLY PROCEEDINGS U/S. 153C OF THE ACT CAN BE INITIATED AND HENCE ASSUMPTION OF JURISDICTION U/S. 147 OF THE ACT IS BAD IN LAW AND LIAB LE TO BE ANNULLED. 2. LD. COUNSEL FOR THE ASSESSEE STATED THAT THE AFORESAID ADDITIONAL GROUNDS ARE LEGAL IN NATURE AND AS SUCH THE SAME MAY BE ADMITTED, IN VIEW OF THE HONBLE SUPREME COURT DECISION IN THE CASE OF NTP C VS. CIT REPORTED IN 229 ITR 383. 3. ON THE ADMISSION OF ADDITIONAL GROUNDS OF APPEAL, LD. SR. DR OBJECTED THE SAME AND STATED THAT ASSESSEE HAS NOT FILED THESE ADDI TIONAL GROUNDS BEFORE THE LD. CIT(A) AND THEREFORE AT THIS STAGE TH ESE ADDITIONAL GROUNDS ARE NOT PERMISSIBLE, HENCE, THE SAME MAY BE REJECTED. 4. AT THE TIME OF FILING THE APPEAL ON 22.2.2019 T HE REGISTRY HAS RAISED OBJECTION BY STATING THAT BOTH THE APPEALS ARE TIME B ARRED BY 49 DAYS. IN RESPONSE TO THE SAME, ASSESSEE HAS FILED THE APPLICATION FOR CONDONATION OF DELAY SUPPORTED BY AFFIDAVIT OF SH. SUMAN AGGARWAL, W/O PRADEEP KUMAR AGGARWAL, DIRECTOR OF M/S ANANYA PORTFOLIO PVT. LTD. 5. I HAVE PERUSED THE CONTENTION RAISED BY THE ASSESSEE IN THE APPLICATION FOR CONDONATION OF DELAY SUPPORTED BY THE AFFIDAVIT D ATED 17.02.2020. I FIND THAT THE ASSESSEE COULD NOT FILE THE APPEAL DUE TO LULL IN THE BUSINESS AND 3 ALSO ASSESSEE COULD NOT EMPLOY ANY EMPLOYEE TO SUPPORT TH E BUSINESS. SECONDLY, THE ORDER PASSED BY THE LD. CIT(A) WAS NOT R ECEIVED BY THE ASSESSEE. IT WAS RECEIVED BY SH. GOPAL DUTT, A GUARD OF THE BUILDING WHERE THE OFFICE OF THE ASSESSEE IS SITUATED, BUT THE GUARD HAS HANDED OVER THE ORDER OF THE LD. CIT(A) IN THE MONTH OF FEBRUARY, 2 019 AND IMMEDIATELY THEREAFTER, THE ASSESSEE FILED THE APPEAL BEFORE THE TR IBUNAL. NO DOUBT THAT ASSESSEE HAS MENTIONED VARIOUS OTHER REASONS FOR CONDONATION OF DELAY OF 49 DAYS ALOGNWITH THE AFFIDAVIT AND BALANCE SHEET AS ON 31.3.2019 SHOWING ITS FINANCIAL POSITION. KEEPING IN VIEW OF THE F ACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE DELAY OF 49 DAYS FOR WHICH THE ASSESSEE HAS GIVEN VARIOUS REASONS IN THE APPLICATION FOR CONDONATION OF DE LAY WHICH HAS STRONGLY BEEN OPPOSED BY THE LD. DR, BUT IN THE INTE REST OF JUSTICE, I AM OF THE VIEW THAT NO ONE CAN BE DEBARRED FROM FILING THE APPEAL WHICH IS A STATUTORY RIGHT OF THE ASSESSEE ONLY BECAUSE THE APPEAL FI LED BY THE ASSESSEE IS DELAYED BY 49 DAYS. IN THE INTEREST OF JUSTICE, I AM OF THE VIEW THAT THE DELAY OF 49 DAYS IN FILING THE PRESENT APPEALS DESERVE TO BE CONDONED, THEREFORE, I CONDONE THE DELAY OF 49 DAYS IN BOTH THE APPEALS AND ADMIT BOTH THE APPEALS FOR ADJUDICATION ON THE BASIS OF THE O RIGINAL GROUNDS RAISED BY THE ASSESSEE AS WELL AS THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE. 6. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSESSEE HAS ONLY ARGUED ADDITIONAL GROUND NO. 1 AND STATED THAT ASSESSEE HAS FILE D THE ORIGINAL RETURN DECLARING NIL INCOME WHICH WAS PROCESSED U/S. 143(1) OF TH E I.T. ACT. BUT LATER, ON THE INFORMATION RECEIVED FROM THE OFFICE O F THE DIRECTOR OF INCOME TAX (INVESTIGATION-II), NEW DELHI JHANDEWALAN EXTENS ION, NEW DELHI, THE CASE OF THE ASSESSEE WAS REOPENED BY THE ASSESSING OFFICER BY ISSUING THE NOTICE DATED 28.3.2016 U/S. 148 OF THE ACT WITH THE AP PROVAL OF THE COMPETENT AUTHORITY REQUIRING THE ASSESSEE TO FURNISH IT S RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION. IN RESPONSE TO THE N OTICE DATED 28.3.2016, ASSESSEE VIDE ITS LETTER DATED 21.6.2016 STATE D THAT THE RETURN 4 OF INCOME FILED BY THE ASSESSEE U/S. 139(1) OF THE ACT MAY BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTICE DATED 28.3.2016 U/S. 148 OF THE ACT. THE ASSESSEE IN RESPONSE TO THE NOTICE U/S. 148 OF THE ACT APPEARED BEFORE THE AO ON 21.6.2016 AND FILED ITS LETTER DATED 21.6 .2016 STATED THAT THE RETURN OF INCOME FILED BY THE ASSESSEE U/S. 139(1) OF THE ACT MAY BE TREATED IN RESPONSE TO THE NOTICE ISSUED U/S. 148 OF THE ACT AND O N THE SAME DAY AO ISSUED A NOTICE DATED 21.6.2016 U/S. 143(2) OF THE I.T. ACT, 1961 REQUIRING THE ASSESSEE TO ATTEND HIS OFFICE ON 05.7.2016 AT 10.30 AM EITHER IN PERSON OR BY A REPRESENTATIVE DULY AUTHORIZED IN WR ITING IN THIS BEHALF OR PRODUCE OR CAUSE THERE TO BE PRODUCED AT THE SAID TIME ANY DOCUMENTS, ACCOUNTS AND ANY OTHER EVIDENCE ON WHICH IT MAY RELY IN SUPPORT OF THE RETURN FILED BY IT. LD. COUNSEL FOR THE ASSESSEE STATED T HAT THE NOTICE U/S. 143(2) OF THE ACT DATED 21.6.2016 WAS ISSUED TO THE ASSE SSEE ON THE SAME DATE I.E. WHEN HE APPEARED BEFORE THE AO ON 21.6.20 16, WHICH IS NOT VALID NOTICE ARISING THE JURISDICTION U/S. 147 OF THE ACT AND U/S. 143(3) OF THE ACT TO PASS THE ASSESSMENT ORDER AGAINST THE ASSESSEE. TO SUPPOR T THIS ARGUMENT HE HAS FILED A COPY OF NOTICE DATED 21.6.201 6 ISSUED BY THE AO U/S. 143(2) OF THE I.T. ACT. HE SUBMITTED THAT THE SAID ADDITIONAL GROUND NO. 1 I.E. THE ISSUE IN DISPUTE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF D IRECTOR OF INCOME TAX VS. SOCIETY FOR WORLDWIDE INTERBANK FINANCIAL TEL ECOMMUNICATIONS (2010) 323 ITR 249 (DEL.). HE FURTHER STATED THAT TH E ITAT, DELHI BENCH HAS ADJUDICATED AND DECIDED THE SIMILAR ISSUE IN FAVOUR OF THE ASSESSEE BY DELETING THE ADDITION AND DECLARING NOTICE U/S. 143( 2) OF THE ACT AS INVALID AND RESULTANTLY THE REASSESSMENT WAS QUASHED. IN SUPPORT OF HIS CONTENTION, HE FILED A PAPER BOOK CONTAINING PAGES 1-2 22 IN WHICH HE HAS ATTACHED THE VARIOUS ORDERS OF THE ITAT AND THE JUDGEM ENT OF THE HONBLE HIGH COURT AND REQUESTED THAT THE ADDITION IN DISPUTE MAY BE DELETED AND 5 NOTICE U/S. 143(2) OF THE ACT MAY BE HELD AS INVALID AN D SUBSEQUENT ASSESSMENT MAY BE QUASHED. 7. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS OF THE REVENUE AUTHORITIES AD STATED THAT THE ADDITIONAL GROUND RAISE D BY THE ASSESSEE HAS NOT BEEN RAISED BEFORE THE LD. CIT(A), MAY NOT BE AD MITTED. HE HAS ALSO FILED SOME WRITTEN SUBMISSIONS DATED 18.2.2020 TO CONTR OVERT THE ARGUMENTS ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE AND FINALLY STATED THAT APPEAL FILED BY THE ASSESSEE MAY BE DISMISSED BECAUSE A WELL REASONE D ORDER HAS BEEN PASSED BY THE LD. CIT(A). 8. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDE RS OF THE REVENUE AUTHORITIES ALONGWITH WRITTEN SUBMISSIONS FILED BY BOTH THE PARTIES AND THE CONTENTIONS RAISED BY THE ASSESSEE IN THE ADDITIONAL GROU ND NO.1 WHICH IS PURELY LEGAL IN NATURE, AS ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE CONTENTION RAISED IN THE ADDITIONAL GROUND NO. 1 WHICH IS LEGAL I N NATURE RAISED BY THE ASSESSEE ALONGWITH ORDER PASSED BY THE HONBLE DELHI HIGH C OURT AND THE TRIBUNALS ADJUDICATING THE SIMILAR ISSUES INVOLVED IN THE ADDITIONAL GROUND OF APPEAL. IN VIEW OF THE HONBLE SUPREME COURT OF IND IA DECISION IN THE CASE OF NTPC VS. CIT 229 ITR 383 (SC), I ADMIT THE ADDITI ONAL GROUND NO. 1, AS ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE, AS AFORESAID A ND FIRST ADJUDICATE THE SAME AS UNDER:- I AM OF THE VIEW THAT ASSESSEE COMPANY FILED THE ORIGINA L RETURN OF INCOME FOR THE ASSESSMENT YEAR IN DISPUTE DECLARING NIL IN COME WHICH WAS PROCESSED BY THE ASSESSING OFFICER U/S. 143(1) OF THE ACT. L ATER ON, THE INFORMATION RECEIVED FROM THE DIRECTOR OF INCOME TAX (INVESTIGATION-II), JHANDEWALAN EXTENSION, NEW DELHI, THE CASE OF THE ASSESSE E WAS REOPENED BY ISSUING THE NOTICE U/S. 148 OF THE ACT DATED 28.3.20 16. AFTER RECORDING THE REASONS AND AFTER GETTING THE APPROVAL FROM THE CO MPETENT AUTHORITY, A 6 NOTICE U/S. 148 OF THE ACT WAS ISSUED ON 28.3.2016 REQUI RING THE ASSESSEE TO FILE THE RETURN OF INCOME. AS PER THE ASSESSMENT ORDER P AGE NO. 17 & PARA NO. 17, IT IS NOTED THAT THE AO AFTER EXAMINATION OF THE DOCUMENTS I.E. RETURN OF INCOME AND INFORMATION PROVIDED BY THE INVESTIGATI ON WING OF THE DEPARTMENT, NEW DELHI AND DULY SATISFYING HIMSELF, I SSUED NOTICE DATED 28.3.2016 U/S. 148 OF THE ACT WITH THE PRIOR APPROVAL OF THE PR. CIT-I, NEW DELHI WAS ISSUED REQUIRING THE ASSESSEE TO FURNISH ITS RETU RN OF INCOME FOR THE YEAR UNDER CONSIDERATION. AS PER PARA 18 AT PA GE 17 OF THE ASSESSMENT ORDER, IN RESPONSE TO THE NOTICE, ASSESSEE VIDE ITS LETTER DATED 21.6.2016 STATED THAT THE RETURN OF INCOME FILED BY THE ASSESSEE U/ S. 139(1) OF THE ACT MAY BE TREATED AS RETURNED FILED IN RESPONSE TO NOTICE U/S. 148 OF THE ACT. STATUTORY NOTICE U/S. 143(2) OF THE ACT WAS ALSO ISSUED. LD. COUNSEL FOR THE ASSESSEE FILED A COPY OF NOTICE U/S. 143(2) OF THE ACT DAT ED 21.6.2016 ISSUED BY SH. ANIL KUMAR, INCOME TAX OFFICER, WARD 2(4), NEW DELHI REQUIRING THE ASSESSEE TO ATTEND HIS OFFICE ON 05.7.2016 AT 10.30 AM E ITHER IN PERSON OR BY A REPRESENTATIVE DULY AUTHORIZED IN WRITING IN T HIS BEHALF OR PRODUCE OR CAUSE THERE TO BE PRODUCED AT THE SAID TIME ANY DOCUMENT S, ACCOUNTS AND ANY OTHER EVIDENCE ON WHICH ASSESSEE MAY RELY IN SUPPORT O F THE RETURN FILED BY THE ASSESSEE. I AM OF THE VIEW THAT THE NOTICE ISSUE D U/S. 143(2) OF THE ACT TO THE ASSESSEE DATED 21.6.2016 WAS ISSUED ON THE SAME DATE WHEN THE ASSESSEE FILED ITS LETTER DATED 21.6.2016 STATING THERE IN THAT THE RETURN FILED U/S. 139(1) OF THE ACT MAY BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTICE U/S. 148 OF THE ACT. KEEPING IN VIEW OF THE ORDER OF THE HONBLE DELHI HIGH COURT IN THE CASE OF DIRECTOR OF INCOME TAX VS. SOCIETY FOR WORLDWIDE INTERBANK FINANCIAL TELECOMMUNICATIONS (2010) 323 ITR 249 (DEL.) DATED 13. 4.2010 (SUPRA) AND VARIOUS ORDERS PASSED BY THE ITAT, DELHI BENCHES, COP IES THEREOF HAS BEEN FILED BY THE ASSESSEE IN THE SHAPE OF PAPER BOOK CONTAINING PAGES 1- 222 INCLUDING THE ORDER PASSED BY THE ITAT, DELHI SMC BENCH DATED 7 14.5.2018 IN THE CASE OF MICRON ENTERPRISES PVT. LTD. VS . ITO IN ITA NO. 901/DEL/2016 (AY 2006-07). THE RELEVANT PORTION OF THE TRIBUNALS DECISION IN THE CASE OF MICRON ENTERPRISES PVT. LTD. I.E. PARA NO. 2 TO 9 AT PAGE NO. 2 TO 9 ARE REPRODUCED AS UNDER:- 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT ASSESSEE IS A COMPANY FILED RETURN OF INCOME DECLARING NIL INCOME. TH E CASE WAS SUBSEQUENTLY REOPENED UNDER SECTION 147 OF THE I.T. ACT, AFTER RECORDING REASONS AND NOTICE UNDER SECTION 148 OF THE I.T. ACT, WAS ISSUED ON 29 TH MARCH, 2013. REPLY TO THE NOTICE UNDER SECTION 148 OF THE ACT HAS BEEN FILE D BY ASSESSEE ON 26.11.2013. NOTICE UNDER SECTION 143(2) WAS ISSUED ON THE SAME DAY ON 26.11.2013 IN RESPONSE TO WHICH, ASSESSEE-COMPANY APPEARED AND THE A.O. AFTER DISCUSSION MADE THE ADDITION OF RS.10 LAKHS ON ACCOUNT OF UNEXPLAINED INVESTMENT UNDER SECTION 68 OF THE I.T. ACT , 1961 VIDE ORDER DATED 28.02.2014 UNDER SECTION 147 RE AD WITH SECTION 143(3) OF THE I.T. ACT. THE ASSESSEE CHALLENGED THE ADDITION BEFORE THE LD. CIT(A). HOWEVE R, THE APPEAL OF ASSESSEE HAS BEEN DISMISSED BY THE LD. CIT(A). 3. THE ASSESSEE FILED AN APPLICATION DATED 19 TH SEPTEMBER, 2017 FOR ADMISSION OF FOLLOWING ADDITIONAL GROUNDS OF APPEAL : 1.THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NO T QUASHING THE IMPUGNED REASSESSMENT ORDER PASSED BY LD. AO U/S 147/143(3) AND THAT TOO WITHOUT ASSUMING JURISDICTION AS PER LAW AND WITHOUT COMPLYING WITH THE 8 MANDATORY CONDITIONS U/S 147 TO 151 AS ENVISAGED UNDER THE INCOME TAX ACT, 1961. 2. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD. CIT(A) IN NOT QUASHING THE IMPUGNED REASSESSMENT ORDER PASSED BY LD. AO U/S 147/143(3), IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE. LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NO T QUASHING THE IMPUGNED REASSESSMENT ORDER PASSED BY LD. AO U/S 147/143(3) AND THAT TOO WITHOUT ISSUING/SERVING THE MANDATORY NOTICE U/S 143(2) AS PER LAW. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THESE ARE LEGAL IN NATURE AND MAY BE ADMITTED FOR HE ARING AND NO FRESH FACTS ARE REQUIRED FOR DISPOSAL OF ADDITI ONAL GROUNDS. THERE IS NO CHALLENGE TO THE REQUEST OF ADMISSIO N OF THE ADDITIONAL GROUNDS OF APPEAL BY THE LD. D.R. CONSIDERING THESE ADDITIONAL GROUNDS ARE LEGAL IN NATU RE WHICH ARE ALSO NOT OPPOSED BY THE REVENUE, I ADMIT THE ADDITIONAL GROUNDS FOR THE PURPOSE OF DISPOSAL OF THE APPEAL. 5. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSEE FILED REPLY TO THE NOTICE UNDER SECTION 148 OF TH E I.T. ACT ON DATED 26.11.2013 WHICH IS NOTED IN THE ASSESSMENT ORDER, COPY OF WHICH, IS FILED AT PAGE-11 OF TH E PAPER BOOK, IN WHICH, ASSESSEE EXPLAINED THAT THE RETURN ALREADY FILED UNDER SECTION 139(1) MAY BE TREATED AS 9 RETURN FILED IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE I.T. ACT. HE HAS SUBMITTED THAT ON THE SAME DAY A.O. ISSUED NOTICE UNDER SECTION 143(2) I.E., ON 26.11.2013, COPY OF WHICH, IS FILED AT PAGE-12 OF THE PAPER BOOK. HE HAS, THEREFORE, SUBMITTED THAT THE A.O. HAS NOT VALID LY ASSUMED JURISDICTION UNDER SECTION 147 AND 143(3) OF THE I.T. ACT TO PASS THE ASSESSMENT ORDER AGAINST THE ASSESSEE. HE HAS SUBMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF DIRECTOR OF INCOME TAX V S. SOCIETY FOR WORLDWIDE INTERBANK FINANCIAL TELECOMMUNICATIONS (2010) 323 ITR 249 (DEL.) IN WHICH I T WAS HELD AS UNDER : BOTH THE CIT(A) AND THE TRIBUNAL HAVE RETURNED A CONCURRENT AND CLEAR FINDING OF FACT THAT THE NOTICE UNDER S. 143(2) WAS ISSUED ON 23 RD MARCH, 2000 AND SINCE THE RETURN WAS FILED ON 27 TH MARCH, 2000, THE NOTICE WAS NOT A VALID ONE AND, THEREFORE, THE ASSESSMENT COMPLETED ON THE BASIS OF THE NOTICE WAS ALSO INVALID AND WAS CONSEQUENTLY SET ASIDE. IT IS FOR THE FIRST TIME THAT THE COUNSEL FOR THE APPELLANT CONTENDS THAT THE NOTICE, IN FACT, WAS ISSUED ON 27 TH MARCH, 2000 AND NOT ON 23 RD MARCH, 2000, THE DATE WHICH IS RECORDED ON THE NOTICE ITSELF. NO SUCH CONTENTION WAS RAISED BEFORE THE LOWER APPELLATE AUTHORITIES. CONSEQUENTLY, THE SAID CONTENTION CANNOT BE RAISED BEFORE THE COURT FOR THE FIRST TIME. THE APPELLANT HAS STATED THAT THE RETURN WAS FILED BY THE ASSESSEE ON 27 TH MARCH, 2000 AND THE NOTICE 10 UNDER S. 143(2) WAS SERVED UPON THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE BY HAND WHEN THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE CAME AND FILED RETURN. HOWEVER, THE DATE OF THE NOTICE WAS MISTAKENLY MENTIONED AS 23 RD MARCH, 2000. ASSUMING THE AFORESAID TO BE TRUE, THE NOTICE WAS SERVED ON THE AUTHORIZED REPRESENTATIVE SIMULTANEOUSLY ON HIS FILING THE RETURN WHICH CLEARLY INDICATES THAT THE NOTICE WAS READY EVEN PRIOR TO THE FILING OF THE RETURN. THE PROVISIONS OF S. 143(2) MAKE IT DEAR THAT THE NOTICE CAN ONLY BE SERVED AFTER THE AO HAS EXAMINED THE RETURN FILED BY THE ASSESSEE. WHEREAS IT IS DEAR THAT WHEN THE ASSESSEE CAME TO FILE THE RETURN, THE NOTICE UNDER S. 143(2) WAS SERVED UPON THE AUTHORIZED REPRESENTATIVE BY HAND. THUS, IT WOULD AMOUNT TO GROSS VIOLATION OF THE SCHEME OF S. 143(2). 5.1. AND THE CONCLUSION IS AS UNDER : ASSESSMENT MADE IN PURSUANCE OF A NOTICE UNDER SECTION 143(2) ISSUED ON 23 RD MARCH, 2000 WHEN THE RETURN WAS FILED ON 27 TH MARCH, 2000 IS INVALID. 6. HE HAS SUBMITTED THAT THE SAME ORDER HAVE BEEN FOLLO WED BY ITAT, DELHI BENCH, IN THE CASE OF SHRI HARSH BHATIA, NEW DELHI VS. ITO, WARD-50(3), NEW DELHI IN ITA.NO.1262 AND 1263/DEL./2017 DATED 17.10.2017 IN WHICH THE TRIBUNA L HELD AS UNDER : 10. IT WAS FURTHER ARGUED BY THE LD. COUNSEL FOR THE 11 ASSESSEE DR. RAKESH GUPTA THAT NOTICE U/S 143(2) OF THE ACT, WAS ISSUED ON 17.09.2014 AND WHICH IS THE SAME DATE ON WHICH RETURN WAS FILED. THIS IS APPARE NT FROM THE ASSESSING OFFICERS ORDER IN PARA 3 AT PAG E 1. THEREFORE, THE ASSESSING OFFICER HAS NOT APPLIED HI S MIND INDEPENDENTLY WHILE ISSUING NOTICE U/S 148 OF THE ACT. ON THIS COUNT ALSO, THE ASSESSMENT DESERVES TO BE QUASHED. ACCORDINGLY, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEGAL GROUNDS OF THE ASSESSEE ARE ALLOWED. 7. ON THE OTHER HAND, LD. D.R. SUBMITTED THAT ASSESSEE DID NOT FILE RETURN UNDER SECTION 148 WITHIN THE SPECIFIED PERIOD. THEREFORE, THIS GROUND OF APPEAL OF ASSESSEE MAY BE DISMI SSED. 8. AFTER CONSIDERING THE RIVAL SUBMISSIONS, I AM OF THE VIEW THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF DIR ECTOR OF INCOME TAX VS. SOCIETY FOR WORLDWIDE INTERBANK FINANCIA L TELECOMMUNICATIONS (SUPRA) AND ORDER OF ITAT, DELHI BEN CH IN THE CASE OF SHRI HARSH BHATIA, NEW DELHI VS. ITO, WARD-5 0(3), NEW DELHI (SUPRA). IT IS AN ADMITTED FACT THAT ASSESSEE F ILED REPLY IN RESPONSE TO THE NOTICE UNDER SECTION 148 OF THE I.T. ACT ON 26.11.2013 AND SUBMITTED BEFORE A.O. THAT ORIGINAL R ETURN FILED BEFORE HIM MAY BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTICE UNDER SECTION 148 OF THE I.T. ACT. THE A.O. ON T HE SAME DAY SERVED NOTICE UNDER SECTION 143(2) UPON ASSESSEE-COMPANY WHOSE SIGNATURE TALLY ON THE SAID NOTICE. THEREFORE, NO TICE ISSUED UNDER SECTION 143(2) IS INVALID AND RESULTANTLY, THE A SSESSMENT IS VITIATED AND IS LIABLE TO BE QUASHED. I, ACCORDINGLY, SE T ASIDE THE 12 ORDERS OF THE AUTHORITIES BELOW AND QUASH THE RE-ASSESSMEN T PROCEEDINGS IN THE MATTER. RESULTANTLY, ALL ADDITIONS S TANDS DELETED. IN VIEW OF THE ABOVE, THERE IS NO NEED TO D ECIDE OTHER CONTENTIONS RAISED BY LEARNED COUNSEL FOR THE ASSESSEE. 9. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. 9. I HAVE GONE THROUGH THE CONTENTION RAISED BY THE ASSESSEE IN ITS WRITTEN SUBMISSIONS, LEGAL ADDITIONAL GROUND NO.1 RA ISED BY THE ASSESSE WHICH IS LEGAL IN NATURE CHALLENGING THE NOTICE U/S. 1 43(2) OF THE ACT ISSUED ON 21.6.2016 I.E. ON THE SAME DATE WHEN THE ASSESEE AP PEARED BEFORE THE AO AND FILED A LETTER DATED 21.6.2016 STATING THERE IN THAT THE RETURN FILED U/S. 139(1) OF THE ACT MAY BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTICE U/S. 148 OF THE ACT. AFTER THOROUGHLY GONE THE ORDERS PASSED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF DIRECTOR OF INCOM E TAX VS. SOCIETY FOR WORLDWIDE INTERBANK FINANCIAL TELECOMMUNICATIONS (2010) 323 ITR 249 (DEL.) (SUPRA) AND ORDERS OF THE ITAT, DELHI BENCH W HICH THE ASSESSEE HAS FILED IN THE SHAPE OF PAPER BOOK AS WELL AS ONE DECISION IN THE CASE OF MICRON ENTERPRISES PVT. LTD. (SUPRA) WHICH I HAVE REPRODUCED A BOVE, I AM OF THE CONSIDERED VIEW THAT ISSUE INVOLVED IN THE ADDITIONAL GROUND NO. 1 WHICH IS LEGAL IN NATURE RAISED BY THE ASSESSEE IS SIMILAR TO THE FACTS AND CIRCUMSTANCES OF THE AFORESAID CASES. I AM OF THE VIEW THA T THE NOTICE DATED 21.6.2016 U/S. 143(2) OF THE ACT IS INVALID AND RESULTANTLY THE ASSESSMENT IS NOT SUSTAINABLE IN THE EYES OF LAW, HENCE, I QUASH THE SAME BY SETTING ASIDE THE ORDERS OF THE AUTHORITIES BELOW AN D DELETED THE ADDITION IN DISPUTE BY ACCEPTING THE APPEAL OF THE ASSESSEE. 10. KEEPING IN VIEW OF ABOVE, THERE IS NO NEED TO DE CIDE OTHER CONTENTION RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL WHICH HAVE NOW BECOME ACADEMIC. NO CONTRARY ORDER HAS BEEN PRODUCED BY THE LD . DR OF THE HIGHER 13 AUTHORITIES TO CONTROVERT THE ARGUMENTS OF THE LD. COUN SEL FOR THE ASSESSEE ON THE LEGAL ISSUE. 11. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESSE E STAND PARTLY ALLOWED. ORDER PRONOUNCED ON 20-02-2020. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATED: 20-02-2020 SRB COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.