ACIT, Meerut V. Shri Sachin Upadhaya, Dehradun

ITA 1699/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65850 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 22-08-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 08-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NIRANJAN KOU L
• Keywords: Assessment record
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : G : NEW DELHI SHRI I. C. SUDHIR, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO. 1699/DEL/2011 ASSESSMENT YEAR: 20 08- 2009 ACIT VS. SHRI SACHIN UPAADHAYA, CENTRAL CIRCLE - 1 111/2, RAJP UR ROAD, MEERUT DEHRADUN. (PAN AAPPU0297E) (APPELLANT) (RESP ONDENT) AND CO NO. 146/DEL/2011 ASSESSMENT YEAR: 20 08- 2009 SHRI SACHIN UPAADHAYA, VS. ACIT , 111/2, RAJPUR ROAD, C ENTRAL CIRCLE, DEHRADUN. MEERUT (PAN AAPPU0297E) (APPELLANT) (RESP ONDENT) APPELLANT BY : SHRI NIRANJAN KOU L, CIT, DR RESPONDENT BY : SHRI R.C. JAIN, SH RI AJAY DAGA, SHRI SANDEEP MAHJESHWARI, CAS ORDER PER I.C. SUDHIR, JUDICIAL MEMBER THE REVENUE HAS QUESTIONED FIRST APPELLA TE ORDER ON THE FOLLOWING GROUNDS:- 1. THAT THE CIT(A) ERRED IN LAW AND FACTS IN COMIN G TO THE CONCLUSION THAT NOTICE U/S 143(2) WAS NOT SERVED ON THE ASSESSEE IGNORING THE FACTS BROUGHT ON RECORD. THE CIT(A) RE LIANCE ON THE ITA NO. 1699/DEL/2011 & CO NO. 146/DEL/2011 2 AFFIDAVIT OF THE CA SHRI DINESH GUPTA IS BAD IN LAW AS THE AO WAS NOT ALLOWED TO CROSS-EXAMINE HIM. 2. THE CIT(A) HAS ERRED IN LAW AND IN FACTS IN IGN ORING THE ORDER SHEET ENTRY DATED 7.12.2009 OF ASSESSMENT YEAR 2008 -09 WHERE SHRI DINESH GUPTA, CA HAD ATTENDED THE HEARING AND IT HA S BEEN RECORDED. THE STATEMENT OF FACTS MAY BE SEEN. 3. THE CIT(A) HAS ERRED IN LAW AND FACTS IN IGNO RING THE PROVISION OF SECTION 292BB WHICH ARE APPLICABLE TO THE RELEVANT ASSESSMENT YEAR AS STATED IN THE FACTS OF THE CASE. 4. THAT CIT(A) HAS ERRED IN LAW AND FACTS IN PRESU MING THAT ORDER U/S 127 SHOULD HAVE BEEN RECEIVED BY THE AO PRIOR TO TH E ISSUE OF NOTICE U/S 143(2). THE ORDER DATED 23.9.2008 ENCLOSED BY T HE CIT(A) WITH HIS ORDER HAS TRANSFERRED HIS JURISDICTION WITH IMM EDIATE EFFECT AND, THEREFORE, THE ACIT HAS THE JURISDICTION WITH EFFEC T FROM 23.9.2008 AND ACCORDINGLY NOTICE DATED 25.9.2009 WAS AFTER TH E TRANSFER OF JURISDICTION BY THE CIT DELHI VIII VIDE ORDER DATED 23.9.2008. THEREFORE, CIT(A) HAS ERRED IN ASSUMING INCORRECT F ACTS. IN DOING SO THE CIT(A) IGNORED THE PROVISION OF SUB-SEC.3 OF SE CTION 124 WHICH PRESCRIBES THAT JURISDICTION DEFECT SHOULD BE POINT ED OUT WITHIN ONE MONTH OF THE ISSUE OF NOTICE. EVEN DURING THE COURSE OF HEARING ON 7.12.2009 (COPY ENCLOSED) SUCH AS OBJECTION WAS NOT RAISED. 2. THE REVENUE HAS QUESTIONED FIRST APPELLA TE ORDER ON TWO ISSUES. FIRSTLY AS TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN HOLDING THAT NOTICE ISSUED U/S 143 (2) WAS NOT SERVED UPON THE ASSESSEE , HENCE ASSESSMENT FRAMED WAS NOT VALID. SECONDLY AS TO WHETHER THE LD . CIT(A) WAS JUSTIFIED THAT ORDER U/S 127 SHOULD HAVE BEEN RECEIVED BY THE AO PRIOR TO THE ISSUE OF NOTICE U/S 143(2) OF THE ACT. ON SECOND ISSUE A CONNECTED ISSUE HAS ALSO BEEN RAISED BY THE ASSESSEE IN ITS CROSS OBJECTION. THE ISSUE RAISED IN THE CROSS OBJECTION IS AS TO WHETHER THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE ITA NO. 1699/DEL/2011 & CO NO. 146/DEL/2011 3 ASSESSEE HAD FILED APPEAL AGAINST ORDER U/S 127 OF THE ACT AS THE ORDER WAS NOT AN APPEALABLE ORDER. 3. SO FAR AS ISSUE NO. 1 RAISED IN THE APPEAL PREFERRED BY REVENUE IS CONCERNED, THE RELEVANT FACTS ARE THAT THE ASSESSEE CONTENDED BEFORE THE LD. CIT(A) THAT NO NOTICE U/S 143(2) WAS ACTUALLY S ERVED ON THE ASSESSEE AFTER THE RETURN OF INCOME WAS FILED ON 4.11.2009. AFTER DISCUSSING THE FACTS IN DETAIL INCLUDING REMAND REPORT FURNISHED BY THE AO, LD. CIT(A) HAS ACCEPTED THE CONTENTION OF THE ASSESSEE THAT NOTICE U/S 143(2) ISSUED ON 25.11.2009 WAS NOT SERVED UPON THE ASSESSEE. HENCE THE ASSESSMENT FRAMED IN FURTHERANCE THERETO IS A NULLITY . 4. LD. DR SUBMITTED THAT EVEN AS PER THE RECO RD NOTICES U/S 142(2), 143(1) AND 143(2) DATED 23.11.2009 WERE ISSUED AND SERVED UPON SHRI DINESH GUPTA THE LD. CHARTERED ACCOUNTANT APPEARING ON BEHALF OF THE ASSESSEE. HE SUBMITTED THAT THE SAID SHRI DINESH GU PTA THEREAFTER APPEARED ON 7.12.2009 BEFORE THE AO AND FINAL OPPORTUNITY WA S GIVEN TO FURNISH ALL THE DETAILS / DOCUMENTS / EXPLANATION / EVIDENCE AS KED FOR VIDE QUESTIONNAIRE DATED 23.11.2009 BY 14 TH DECEMBER, 2009. THE ASSESSEE HOWEVER FAILED TO FURNISH THE REQUIRED DOCUMENTS AN D DETAILS SINCE ASSESSMENT WAS GOING TO BE BARRED BY LIMITATION ON 29.11.2009 THE AO FRAMED THE ASSESSMENT ON 23.11.2009 U/S 144 OF THE ACT. THE LD. DR DREW OUR ATTENTION TO PAGE NUMBER 41 OF THE PAPER BOOK F ILED ON BEHALF OF THE ASSESSEE I.E COPY OF THE ORDER SHEET OF THE ASSESSM ENT PROCEEDINGS. IN THIS ITA NO. 1699/DEL/2011 & CO NO. 146/DEL/2011 4 ORDER SHEET NOTICES U/S 143 (2) AND 142(1) STATED T O HAVE BEEN ISSUED ON 23.11.2009 FOR 30.11.2009. ONE SHRI DINESH GUPTA C A, SHOWN TO HAVE PARTICIPATED IN THE ASSTT. PROCEEDINGS BUT DID NOT FILE ANY DETAIL/ DOCUMENTS AND REQUESTED FOR ADJOURNMENT. THE PROCEEDINGS WERE ACCORDINGLY ADJOURNED TO 7.12.2009. THE LD. DR ALSO REFERRED PA GE NO. 11 OF THE PAPER BOOK I.E. COPY OF LETTER DATED 18 TH DECEMBER, 2009 OF THE ASSESSEE ADDRESSED TO THE AO REGARDING ASSESSMENT YEAR 2008 -09. HE POINTED OUT THAT IN THIS LETTER THE ASSESSEE HAS NOT RAISED ANY OBJECTION REGARDING NON SERVICE OF NOTICE ISSUED U/S 143(2) OF THE ACT AND HAS RAISED OBJECTION REGARDING NON SERVICE OF NOTICE U/S 127(1) OF THE A CT. THE LD. DR AGAIN REFERRED PAGE NO. 13 OF THE PAPER BOOK I.E. COPY OF THE LETTER DATED 23RD DECEMBER, 2009 WRITTEN BY THE ASSESSEE TO THE AO WI TH REFERENCE TO QUESTIONNAIRE DATED 23.11.2009 WITH REGARD TO ASSES SMENT PROCEEDINGS FOR ASSESSMENT YEAR 2002-03 TO 2008-09. IN THIS LETTER ALSO NO OBJECTION HAS BEEN RAISED REGARDING NON SERVICE OF NOTICE U/S 143 (2) OF THE ACT. HE SUBMITTED FURTHER THAT THE LD. CIT(A) HAS PLACED RE LIANCE ON THE AFFIDAVIT FILED BY SHRI DINESH GUPTA THE LD. CA OF THE ASSESS EE REGARDING NON SERVICE OF NOTICE WITHOUT APPRECIATING THAT IT IS NOTHING B UT SELF SERVING AFFIDAVIT. LD. DR FURTHER SUBMITTED THAT THE CONTENTS OF AFFIDAVIT FILED BY SHRI DINESH GUPTA WAS NOT CONFRONTED WITH THE AO AND THE SAME H AS BEEN RELIED UPON WITHOUT AFFORDING OPPORTUNITY TO THE AO TO CROSS EX AMINE THE DEPONENT. HE PLACED RELIANCE ON THE FOLLOWING DECISIONS :- ITA NO. 1699/DEL/2011 & CO NO. 146/DEL/2011 5 RAM RATAN VS. CIT (1983) 13 TAXMAN 309 (ALLAHABAD) MUNILAL RAMDAYAL VS ITO 76 ITR 15 1 (ORL ) (1970) 5. LD. AR ON THE OTHER HAND TRIED TO JUSTI FY THE FIRST APPELLATE ORDER ON THE ISSUE. HE REITERATED SUBMISSIONS MADE ON BEHALF OF THE ASSESSEE. HE POINTED OUT THAT SUBMISSION OF THE ASSESSEE MADE B EFORE THE LD. CIT(A) WAS REFERRED TO THE AO FOR HIS REACTION ON THOSE SU BMISSIONS OF THE ASSESSEE AND FURTHER CONSIDERING THE REMAND REPORT OF THE AO ON THIS SUBMISSION OF THE ASSESSEE AND AFTER VERIFYING THE RELATED RECORD, THE LD. CIT(A) HAS COME TO THE CONCLUSION THAT NOTICE U/S 1 43(2) WAS NOT SERVED UPON THE ASSESSEE BEFORE THE FRAMING OF ASSESSMENT U/S 144 OF THE ACT. HE PLACED RELIANCE ON THE FOLLOWING DECISIONS :- I) CIT VS. CEBON INDIA LTD. [2010] 229 CTR 1 88 (P&H) II) CIT VS BHAN TEXTILES PVT. LTD. [2006] 287 ITR 370 (DELHI) III) CIT VS. VARDHMAN ESTATES PVT. LTD. [2006] 287 ITR 368 (DELHI) IV) CIT VS. LUNAR DIAMONDS LTD. 281 ITR 1 (DEL HI) V) DECISION IN ITA NO. 5872/DEL/97 OF ITAT SM C-1, NEW DELHI IN THE CASE OF SHRI RAVINDER KUMAR VI) V. SUBRAMONIA IYER VS. CIT KERALA (1978) 1 13 ITR 685 (KER) VII) DCIT VS. MAMIMA SYSTEMS LTD. [2010] 42 DT R 121 (KAR) VIII) CIT VS VAIBHAV HOTELS PVT. LTD. [2010] 42 DTR 121 (KAR) IX) CIT VS. RAJEEV SHARMA [2010] 40 DTR 129 (A LL) X) ACIT & ANR VS. HOTEL BLUEMOON [2010] 321 I TR 362 (SC) XI) ITO VS. NASEMAN FARMS PVT. LTD. [2010] 134 TTJ 472 (DELHI) 6. LD. DR REJOINED WITH THIS SUBMISSION TH AT THE DECISION RELIED UPON THE LD. AR HAVING DISTINGUISHABLE FACTS ARE NOT HEL PFUL TO THE ASSESSEE. HE ALSO REFEREED PROVISIONS OF SECTION 292BB OF THE AC T WITH THESE SUBMISSIONS THAT THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE HAS APPEARED IN THE ITA NO. 1699/DEL/2011 & CO NO. 146/DEL/2011 6 ASSESSMENT PROCEEDINGS WITHOUT RAISING ANY OBJECTIO N AGAINST SERVICE OF NOTICE U/S 143(2) BEFORE COMPLETION OF THE ASSESSME NT. THEREFORE, THE NOTICE IS DEEMED TO BE SERVED UPON THE ASSESSEE AS PER SECTION 292 BB OF THE ACT. 7. THE LD. AR SUBMITTED THAT PARTICIPATION OF ASSESSEE IN PROCEEDING DOES NOT REMOVE THE DEFECT AND ANY SUPPORT HE PLACE D RELIANCE ON THE FOLLOWING DECISIONS :- 1. ALPINE ELECTRONICS ASIA PET LTD. VS. DGIT 205 TAXMAN (DELHI) 190 (DELHI) 2. ACIT VS. HOTEL BLUE MOON 321 ITR 362 (SC) 3. MANISH PRAKASH GUPTA VS. CIT 68 DTR 112 ( ALL.) 8. HAVING GONE THROUGH THE ORDERS OF THE AU THORITIES BELOW WE FIND THAT IN THE ASSESSMENT ORDER FRAMED U/S 144 OF THE ACT ON 27.12.2009 FOR THE ASSESSMENT YEAR 2008-09 UNDER CONSIDERATION, TH E AO HAS MENTIONED AT PAGE NO. 2 THAT NOTICE U/S 143(2) AND 142 (1) ALONG WITH DETAILED QUESTIONNAIRE WERE ISSUED ON 23.11.2009 FIXING THE CASE FOR 30.11.2009. HE HAS MENTIONED THAT IN RESPONSE SHRI DINESH GUPTA, C A ATTENDED ON THAT DATE BUT DID NOT FILE ANY DETAILS, DOCUMENTS, EVIDE NCES AND EXPLANATION IN RESPECT OF VARIOUS QUERIES ASKED FOR VIDE QUESTIONN AIRE ALREADY ISSUED AND SERVED. HE REQUESTED FOR ADJOURNMENT AND THE AO ACC EDED TO HIS REQUEST. THE CASE WAS ADJOURNED TO 7.12.2009 HE MENTIONED FU RTHER THAT ON THIS DATE , SHRI DINESH GUPTA ATTENDED BUT AGAIN DID NO T FILE ANY DETAIL, ITA NO. 1699/DEL/2011 & CO NO. 146/DEL/2011 7 DOCUMENTS, EVIDENCES AND EXPLANATION WHATSOEVER. TH EREFORE, HE WAS GIVEN FINAL OPPORTUNITY ON 7.12.2009 ASKING TO FURN ISH ALL THE DETAILS / DOCUMENTS/ EXPLANATION / EVIDENCES ASKED FOR VIDE Q UESTIONNAIRE DATED 23.11.2009 AND IT WAS EXPLAINED TO HIM THAT IN CASE OF FAILURE TO FILE THE ABOVEMENTIONED DETAILS / DOCUMENTS ETC., THE CASE W ILL BE DECIDED ON THE BASIS OF MATERIAL/ INFORMATION AVAILABLE ON RECORD WITHOUT GIVING ANY MORE OPPORTUNITY. THE CASE WAS FINALLY ADJOURNED TO 14.1 2.2009. HOWEVER NONE ATTENDED NOR ANY DETAILS / DOCUMENTS / EVIDENCES, E XPLANATION WAS FILED. WHEN WE TALLY THESE CONTENTS OF THE ASSESSMENT ORDE R WITH THE ORDER SHEET FOR THE ASSESSMENT YEAR RECORDED DURING THE ASSESSM ENT PROCEEDINGS MADE AVAILABLE AT PAGE 41 OF THE PAPER BOOK (ASSESSEE), WE FIND THAT THERE IS CORROBORATION BETWEEN THE TWO. AGAIN IT APPEARS FR OM THE LETTER DATED 18 TH DECEMBER, 2009 OF THE ASSESSEE ADDRESSED TO THE AO MADE AVAILABLE AT PAGE 11 OF THE PAPER BOOK THAT THE ASSESSEE WHILE R EPLYING QUESTIONNAIRE DATED 23.11.2009 AND NOTICE ISSUED U/S 142 (1) OF T HE ACT, HAS RAISED NO OBJECTION REGARDING NON SERVICE OF NOTICE U/S 143 ( 2) OF THE ACT. EVEN IN THE LETTER DATED 23.12.2009 MADE AVAILABLE AT PAGE NO. 13 TO 24 OF THE PAPER BOOK, ADDRESSED TO THE AO REGARDING ASSESSMENT PROC EEDINGS FOR ASSESSMENT YEARS 2002-03 TO 2008-09 THE ASSESSEE HA S NOT RAISED ANY OBJECTION REGARDING NON SERVICE OF NOTICE U/S 143(2 ) OF THE ACT. ON PERUSAL OF FIRST APPELLATE ORDER WE FIND THAT THE LD. CIT(A ) HAS COME TO THE CONCLUSION REGARDING NON-SERVICE OF NOTICE U/S 143 (2) OF THE ACT ON THE ITA NO. 1699/DEL/2011 & CO NO. 146/DEL/2011 8 BASIS OF MATERIAL ON RECORD AND THE AFFIDAVIT OF SH RI DINESH GUPTA THE LD. CA OF THE ASSESSEE. HE HAS NOTED THAT AFTER GOING THRO UGH THE ASSESSMENT RECORDS FOR THE ASSESSMENT YEAR HE FOUND THAT A LET TER WAS ISSUED BY THE AO ON 17.7.2009 REQUIRING THE ASSESSEE TO FILE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008-09. IN THE SAID LETTER THE AO HAD STATED THAT THE JURISDICTION OVER THE ASSESSEES CASE WAS TRANSFERR ED TO HIS CHARGE AND THE ASSESSEE WAS DIRECTED TO SHOW CAUSE VIDE PENALTY U/ S 271(F) SHOULD NOT IMPOSE FOR NON FILING OF RETURN. THEREAFTER ON 25.2 .2009 THE AO ISSUED NOTICE U/S 143(2) OF THE ACT REQUIRING THE COMPLIAN CE ON 5.10.2009. THIS NOTICE WAS ISSUED EVEN THOUGH ASSESSEE HAS NOT FILE D HIS RETURN FOR THE ASSESSMENT YEAR 2008-09 BEFORE 25.9.2009. THE LD. C IT(A) OBSERVED THAT THE AO COULD NOT HAVE INITIATED ASSESSMENT PROCEEDI NGS WITHOUT HE BEING IN RECEIPT OF THE ORDER U/S 127 DATED 23.9.2008 RECEIV ED BY THE AO ON 6.10.2009 FOR ASSUMING JURISDICTION. THUS THE NOTIC E ISSUED ON 25.9.2009 WAS LEGALLY AN INFRUCTUOUS NOTICE. WE FULLY AGREE WITH THIS FINDING OF THE LD. CIT(A) BUT WHEN THE ASSESSEE HAD FILED RETURN OF IN COME ON 4.11.2009 THE AO WAS HAVING JURISDICTION TO ISSUE NOTICE U/S 143( 2) OF THE ACT. REGARDING THIS NOTICE ISSUED ON 23.11.2009 THE LD. CIT(A) HAS SUBMITTED THAT THERE IS NO ACKNOWLEDGEMENT OR EVIDENCE OF SERVICE OF THESE NOTICES FOR ASSESSMENT YEAR 2008-09 IN THE ASSESSMENT RECORD NOR WAS THERE OFFICE COPY OF THE NOTICE ISSUED U/S 143(2) DATED 23.11.2009. THUS THE LD. CIT(A) CAME TO THE CONCLUSION THAT THE AO DID NOT HAVE EVIDENCE OF PRO VING THAT NOTICE U/S ITA NO. 1699/DEL/2011 & CO NO. 146/DEL/2011 9 143(2) OF THE ACT SERVED PRIOR TO COMPLETION OF TH E ASSESSMENT U/S 144 FOR THE ASSESSMENT YEAR. THE LD. CIT(A) HAS FURTHER ME NTIONED THAT IT IS NOT THE CASE OF THE AO THAT NOTICE WAS SERVED ON THE AS SESSEE BUT IT WAS SERVED ON SHRI DINESH GUPTA, CA OF THE ASSESSEE WHEREAS SH RI DINESH GUPTA IN HIS AFFIDAVIT HAS SPECIFICALLY DENIED RECEIPT OF NOTICE U/S 143(2) OF THE ACT. HE HAS FURTHER NOTED THAT ASSESSMENT RECORDS FOR ASSTT . YEAR 2008-09 DO NOT CONTAIN ANY MATERIAL OR EVIDENCE TO SUPPORT THE AO S STAND THAT THE NOTICE U/S 143(2) WAS ISSUED AND HENCE SERVED ON 23.11.200 9. HAVING GONE THROUGH THE AFFIDAVIT OF SHRI DINESH GUPTA, THE LD. CA OF THE ASSESSEE, A COPY THEREOF HAS BEEN MADE AVAILABLE AT PAGE NO. 51 AND 52 OF THE PAPER BOOK, WE FIND THAT THE DEPONENT HAS ACCEPTED THAT H E HAD APPEARED BEFORE THE AO ON 23.11.2009 BUT HE WAS HANDED OVER WITH TH E NOTICE U/S 142(1) WITH QUESTIONNAIRE AND NOTICE U/S 143(2) FOR EACH O F THE ASSESSMENT YEARS 2002-03 TO 2007-08. HE HAS STATED THAT HE WAS HANDE D OVER NOTICE U/S 142(1) WITH QUESTIONNAIRE ON 23.11.2009 FOR THE ASS ESSMENT YEAR 2008-09 BUT NO NOTICE U/S 143(2) WAS HANDED OVER FOR THE AS SESSMENT YEAR 2008- 09. HE HAS AVERRED FURTHER THAT NOTICE U/S 143(2) D ATED 25.9.2009 WAS SERVED FOR THE ASSESSMENT YEAR AND NOTICE U/S 143(2 ) WAS NEVER ISSUED AND HANDED OVER TO THE ASSESSEE ON 23.11.2009 AND THERE AFTER FOR THE ASSESSMENT YEAR 2008-09. THE DEPONENT HOWEVER DID N OT TALK ABOUT THE GENUINENESS OF THE ORDER SHEET MADE AVAILABLE AT PA GE NO. 41 & 42 OF THE PAPER BOOK WHEREIN NOTICES U/S 143(2), 142(1) AND Q UESTIONNAIRE SHOWN TO ITA NO. 1699/DEL/2011 & CO NO. 146/DEL/2011 10 HAVE BEEN ISSUED ON 23.11.2009 FOR 30.11.2009. ON 3 0.11.2009 SHRI DINESH GUPTA , CHARTERED ACCOUNTANT SHOWN TO HAVE ATTENDE D THE PROCEEDINGS AND FURTHER PROCEEDINGS WERE ADJOURNED TO 7.12.2009 . SHRI DINESH GUPTA AGAIN ATTENDED THE PROCEEDINGS ON 7.12.2009 AND THE CASE WAS ADJOURNED TO 14.12.2009. THE PROCEEDINGS OF 7.12.2009 HAS B EEN ACKNOWLEDGED BY TWO INITIALS. THUS IT MAY BE A DEBATABLE ISSUE AS TO WHETHER NOTICE ISSUED U/S 143(2) WAS HANDED OVER TO SHRI DINESH GUPTA ON 23.11.2009 OR NOT BUT THERE IS NO DISPUTE THAT SHRI DINESH GUPTA HAS PART ICIPATED IN THE PROCEEDINGS ON 30.11.2009, 7.12.2009 AND ON 14.12.2 009. THERE IS ALSO NO DISPUTE THAT IN THE LETTER WRITTEN BY THE ASSESSSE TO THE AO ON 18.12.2009 AND 13.12.2009, THE ASSESSEE HAS NOT RAISED ANY OBJ ECTION REGARDING THE NON-SERVICE OF NOTICE U/S 143(2) OF THE ACT. COPIES OF THESE LETTERS HAVE BEEN MADE AVAILABLE AT PAGE NOS. 11 TO 24 OF THE PA PER BOOK. THE LD. CIT(A) HAS NOT COMMENTED UPON THIS ASPECT OF THE MA TTER. THE HONBLE MADRAS HIGH COURT IN THE CASE OF AREVA T AND D IND IA LTD. V. ASSISTANT COMMISSIONER OF INCOME-TAX [2007] 294 ITR 233 (MAD) TO WHICH WE HAVE OCCASION TO GO THROUGH HAS BEEN PLEASED TO HOLD THA T WHERE ASSESSEE HAD CONTINUOUSLY APPEARED AND PARTICIPATED IN ALL THE R EASSESSMENT PROCEEDINGS AND IT IS NOT THE CASE OF THE ASSESSEE THAT NO PROP ER OPPORTUNITY WAS GIVEN IN THE CASE AND THE ONLY CONTENTION IS THAT THERE WAS NO NOTICE U/S 143(2) BEFORE COMPLETING THE ASSESSMENT THE COMPLETION OF THE REASSESSMENT WAS ONLY IRREGULARITIES COMMITTED BY THE AO FOR WANT OF ADHERENCE TO SOME ITA NO. 1699/DEL/2011 & CO NO. 146/DEL/2011 11 PRESCRIBED RULES FOR MODE OF PROCEEDINGS AND NOT A NULLITY. THE PROVISIONS LAID DOWN U/S 292BB OF THE ACT WHICH HAS CAME INTO EFFECT FROM 1.4.2008 ALSO DEALS WITH SUCH A SITUATION WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDINGS OR CORPORATED IN ANY INQUIRY RELATING T O ASSESSMENT OR REASSESSMENT AND IT HAS BEEN PROVIDED THEREIN THAT IN SUCH SITUATION IT SHALL BE DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF TH E ACT, WHICH IS REQUIRED TOBE SERVED UPON HIM, HAS BEEN DULY SERVED UPON HIM IN ACCORDANCE WITH PROVISION OF THIS ACT AND SUCH ASSESSEE SHALL BE PR ECLUDED FROM TAKING ANY OBJECTION IN ANY PROCEEDINGS OR INQUIRY UNDER THIS ACT THAT THE NOTICE WAS NOT SERVED UPON HIM IN TIME OR SERVED UPON HIM IN A N IMPROPER MANNER. THERE IS NO DISPUTE IN THE PRESENT CASE THAT THE AS SESEE HAD NOT RAISED OBJECTION REGARDING SERVICE OF NOTICE U/S 143(2) OF THE ACT BEFORE THE COMPLETION OF SUCH ASSESSMENT AND HAD PARTICIPATED THROUGH HIS REPRESENTATIVE IN THE ASSESSMENT PROCEEDINGS. ONLY DISPUTED FACT REMAINED THAT THE NOTICE U/S 143 (2) WAS NOT SERVED BY HAND ING OVER IT TO THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE WHEN HE A TTENDED THE PROCEEDINGS BEFORE THE AO ON 23.11.2009. SINCE THIS ASPECT OF THE MATTER I.E. REGARDING THE PARTICIPATION OF THE ASSESSEE IN THE ASSESSMENT PROCEEDINGS WITHOUT RAISING ANY OBJECTION ABOUT NON SERVICE OF NOTICE U/S 143(2) OF THE ACT HAS NOT BEEN CONSIDERED BY THE LD . CIT(A) IN VIEW OF THE PROVISION OF SECTION 292BB OF THE ACT, WE SET ASIDE THE MATTER TO THE FILE OF THE LD. CIT(A) TO VERIFY THE ASSESSMENT RECORD IN T HIS REGARD AND DECIDE THE ITA NO. 1699/DEL/2011 & CO NO. 146/DEL/2011 12 ISSUE AFRESH AFTER AFFORDING OPPORTUNITY OF BEING H EARD TO THE PARTIES AND IF SO DESIRED BY THE AO THE OPPORTUNITY TO CROSS EXAMI NE SHRI DINESH GUPTA MAY ALSO BE PROVIDED . THE ISSUE NO. 1 IS THUS SET ASIDE. ISSUE NO. 2 AND CROSS OBJECTION NO. 146/DEL/2011 9. THE GRIEVANCE OF THE ASSESSEE IN THE CROS S OBJECTION IS THAT THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE APPEAL FILED B Y THE ASSESSEE AGAINST ORDER U/S 127 OF THE ACT IS NOT AN APPEALABLE ORDER . LD. AR REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. HE S UBMITTED THAT THE LD. CIT VIDE ITS ORDER DATED 23.9.2008 U/S 127 OF THE A CT HAD TRANSFERRED THE JURISDICTION OF THE ASSESSEE FROM ITO WARD 23 (3), NEW DELHI TO ACIT, CENTRAL CIRCLE, MEERUT. THE LD. AR POINTED OUT THA T THE ASSESSEE HAD RAISED PRELIMINARY OBJECTION REGARDING JURISDICTION BUT TH E AO DID NOT CLARIFY THAT THE JURISDICTION WAS ASSUMED BY HIM PURSUANT TO THE ORDER U/S 127 PASSED BY LD. CIT DELHI VIII, NEW DELHI VIDE HIS ORDER D ATED 23.9.2008. HE SUBMITTED THAT AO SHOULD HAVE DEALT WITH THE OBJECT ION BY PASSING A SPEAKING ORDER JUSTIFYING ASSUMPTION OF JURISDICTIO N. WITHOUT APPRECIATING THESE MATERIAL FACTS THE LD. CIT(A) HAS REJECTED TH E CONTENTION OF THE ASSESSEE QUESTIONING VALIDITY OF THE ASSESSMENT ORD ER PASSED BY THE AO HAVING NO JURISDICTION. THE LD. CIT(A) HAS THUS ER RED IN HOLDING THAT THE ASSESSEE HAD FILED APPEAL AGAINST ORDER PASSED U/S 127 OF THE ACT WHICH WAS NOT AN APPEALABLE ORDER U/S 246A OF THE ACT. HE PLACED RELIANCE ON THE FOLLOWING DECISIONS :- ITA NO. 1699/DEL/2011 & CO NO. 146/DEL/2011 13 1. AJANTHA INDUSTRIES VS. CBDT 102 ITR 281 (S C) 2. MUKUTLA LALITA V. CIT 226 ITR 23 (A.P) (A NDHRA PRADESH) 3. VINAYKUMAR JAISWAL VS. CIT 221 ITR 568 (AL L) 4. UNNAO DISTILLERIES & BREWERIES LTD. VS. C IT 316 ITR 82 (SC.) 5. MARITIME MERCHANTS (P) LTD. VS. CIT 22 6 CTR CALCUTTA 511 6. ANAND KUMAR ARYA VS. CIT 314 ITR 324 (CA LCUTTA) 7. DR. HEMANG ASHVINKUMAR BAXI (DR.) VS. DY . CIT 45 DTR 38 (GUJ) 8. DR. P ARTHASARATHY SESHAN IYENGAR VS . DY. CIT & ANR. (2010) 45 DTR 40 (GUJ.) 9. CHAITANYA VS. CIT 328 ITR 208 (BOM) 10. ANIL KUMAR KOTHARI VS. UOI 39 DTR 19 (GU J) 11. MADHU KHURANA VS. CIT 47 DTR 289 (GUJ) 10 LD. DR ON THE OTHER HAND TRIED TO JUSTIFY THE ORDERS OF THE AUTHORITIES BELOW. 11. HAVING GONE THROUGH THE ORDERS OF THE AUTHO RITIES BELOW WE FIND THAT ASSESSEE DID NOT QUESTION THE MAINTAINABILITY OF TH E ORDER PASSED U/S 127 OF THE ACT BEFORE THE APPROPRIATE COURT INSTEAD HE PAR TICIPATED IN THE ASSESSMENT PROCEEDINGS BEFORE THE AO AT MEERUT TO WHOM THE CASE OF THE ASSESSEE WAS TRANSFERRED. UNDISPUTEDLY U/S 246A OF THE ACT THE ORDER PASSED U/S 127 OF THE ACT IS NOT APPEALABLE. UNDER THESE CIRCUMSTANCES THE LD. CIT(A) WAS JUSTIFIED IN ARRIVING AT THE CONCLUS ION THAT HE WAS HAVING NO JURISDICTION U/S 246A OF THE ACT TO ENTERTAIN THE A PPEAL FILED BY THE ASSESSEE ITA NO. 1699/DEL/2011 & CO NO. 146/DEL/2011 14 AGAINST THE ORDER OF LD. CIT PASSED U/S 127 OF THE ACT. THE DECISIONS RELIED UPON BY THE LD. AR REFERRED HEREIN ABOVE ARE NOT HE LPFUL TO THE ASSESSEE SINCE THERE THE ASSESSEE HAS QUESTIONED THE VALIDIT Y OF THE ORDER PASSED U/S 127 OF THE ACT BEFORE THE APPROPRIATE COURT OF LAW. UNDER THESE CIRCUMSTANCES WE DO NOT FIND ANY INFIRMITY IN THE F IRST APPELLATE ORDER ON THE ISSUE. THE SAME IS UPHELD. THE CROSS OBJECTION IS T HUS REJECTED. 12. IN VIEW OF OUR FINDING HEREINABOVE ON THE ISSUE NO. 2 DOES NOT SURVIVE. THE SAME IS REJECTED AS HAVING BECOME INFR UCTUOUS. 13. IN THE RESULT APPEAL IS ALLOWED FOR S TATISTICAL PURPOSE AND CROSS OBJECTION IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 21/11/2012. SD/- SD/- (T.S. KAPOOR) ( I.C. SUDHIR ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 21/11/2012 *VEENA COPY OF ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER DEPUTY REGISTRAR, ITAT