Satish Kumar , Faridabad V. ITO, ward- 2(3), Faridabad

ITA 3586/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7360 (ITAT-DELHI)
• Duration Of Justice: 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 14-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Bogus purchase; Opportunity of being heard; Principle of natural justice; Accommodation entries; Reassessment proceedings
• Section: 143(3); 142(1); 147; 148

Judgement Text

1 IN THE INCOME TAX APPELATE TRIBUNAL DELHI BENCH SMC: NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 3586/DEL/2018 A.Y. 2008-09 SATISH KUMAR, VS. ITO, WARD 2(3), RRA TAXINDIA, FARIDABAD D-28, SOUTH EXTENSION, PART-I, NEW DELHI 49 (PAN: AAVPK4726E) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. SOMIL AGGARWAL, ADV. DEPARTMENT BY : SH. S.L. ANURAGI, SR. DR. O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 12.3.2018 OF THE LD. CIT(A), FARIDABAD RELEVANT TO ASSESSMENT YE AR 2008-09 ON THE FOLLOWING GROUNDS:- 1) THAT HAVING REGARD TO THE FACT AND CIRCUMSTANCES OF THE CASE, LD. C1T (A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN FRAMING THE IMPUGNED REASSESSMENT ORDER AS THE ASSESSMENT 2 ORDER WAS PASSED WITHOUT COMPLYING WITH THE MANDATORY CONDITIONS OF SECTION 147 TO 151 OF THE INCOME TAX ACT, 1961 AND WITHOUT RECORDING VALID REASONS AS PER LAW AND WITHOUT OBTAINING VALID APPROVAL AS PER LAW AND IN ANY CASE REOPENING OF THE ASSESSMENT AND FRAMING OF THE REASSESSMENT ORDER WAS CONTRARY TO LAW. 2) THAT IN ANY VIEW OF THE MATTER AND IN ANY CASE, ACTION OF LD.CIT(A) IN CONFIRMING THE ACTION OF LD. AO IN REOPENING OF THE IMPUGNED ASSESSMENT U/S 143(3)/147 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 UPHOLDING THE ACTION OF THE LD. A.O. IN FRAMING THE IMPUGNED REASSESSMENT IN U/S 143(3)/147 OF THE ACT, AND THAT TOO WITHOUT ISSUING / SERVING THE MANDATORY NOTICE U/S 143(2) WITHIN THE STATUTORY ALLOWABLE PERIOD AND MORE SO BY NOT FULFILLING THE REQUIREMENTS OF THE PROVISIONS OF LAW. 3 4) THAT IN ANY VIEW OF THE MATTER AND IN ANY CAS E, ACTION OF LD.CIT(A) IN CONFIRMING THE ACTION OF LD. A.O. IN RESTRICTING THE ADDITION TO THE EXTENT OF RS. 17,77,886/- BEING 12.5% OF THE PURCHASES I.E. RS. 1,42,23,093/- CLAIMED TO HAVE BEEN MADE, ALLEGEDLY ON ACCOUNT OF BOGUS PURCHASES FROM M/S MAA DURGA TRADING COMPANY AND THAT TOO WITHOUT PROPER APPRECIATION OF FACTS ON RECORD, AND BY RECORDING INCORRECT FACTS AND FINDINGS, AND MAKING ALLEGATIONS WITHOUT ANY BASIS, MATERIAL OR EVIDENCE AND MERELY ON THE BASIS OF SURMISES AND CONJECTURES AND WITHOUT OBSERVING THE PRINCIPAL OF NATURAL JUSTICE. 5) THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD. CIT(A) IN CONFIRMING THE ADDITION OF R S. 17,77,886/- IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 6) 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 PASSING THE IMPUGNED ORDER WITHOUT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD. 4 7) THAT THE APPELLANT CRAVES THE LEAVE TO ADD, ALTER OR AMEND THE GROUNDS OF APPEAL AT ANY STAGE AND ALL THE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FI LED HIS RETURN OF INCOME DECLARING AT RS. 2,54,083/- ON 24.4.2008. LATE R ON, AS PER THE INFORMATION AVAILABLE WITH THE DEPARTMENT THE PROCE EDINGS U/S. 147 FO THE I.T. ACT, 1961 WERE INITIATED AFTER RECORDING REASONS B Y AO. NOTICE U/S. 148 OF THE ACT WAS ISSUED ON 26.3.2015. IN RESPONSE TO NOTI CE U/S. 148 FO THE ACT NO RETURN WAS FILED BY THE ASSESSEE. THE REASSESSMENT U/S. 143(3)/147 WAS COMPLETED ON 21.3.2016 AT AN ASSESSED IN COME FO RS. 45,21,010/-. AO ON GOING THROUGH THE INFORMATION RE CEIVED FROM INVESTIGATION WING, FOUND THAT THE ASSESSEE HAS MADE PA YMENT OF RS. 1,83,43,517/- TO M/S MAA DURGA TRADING COMPANY ON A CCOUNT OF ACCOMMODATION ENTRIES PROVIDED BY HIM TO THE ASSESSEE DU RING THE YEAR. AGAINST THE ORDER OF THE AO, THE ASSESSEE APPEALED BEFO RE THE LD. CIT(A), WHO VIDE HIS IMPUGNED ORDER DATED 12.3.2018 HAS PARTL Y ALLOWED THE APPEAL OF THE ASSESSEE. AGGRIEVED WITH THE ORDER OF THE LD. C IT(A), ASSESSEE APPEALED BEFORE THE TRIBUNAL. 3. LD. COUNSEL FOR THE ASSESSEE HAS ONLY ARGUED THE G ROUND NO. 3 RELATING TO UPHOLDING THE ACTION OF THE AO IN FRAMIN G THE IMPUGNED REASSESSMENT U/S. 143(3)/147 OF THE ACT, AND THAT TOO W ITHOUT ISSUING / SERVING THE MANDATORY NOTICE U/S. 143(2) OF THE ACT WI THIN THE STATUTORY 5 ALLOWABLE PERIOD AND MORE SO BY NOT FULFILLING THE REQUIREMENTS OF THE PROVISIONS OF LAW. DURING THE HEARING, LD. COUNSEL F OR THE ASSESSEE STATED THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 24.4.200 8 DECLARING TOTAL INCOME OF RS. 2,94,083/-. THE AO STARTED THE PROCEEDIN GS U/S. 147 OF THE ACT AFTER RECORDING THE REASONS ON 26.3.2015 AND ACCORDI NGLY ISSUED NOTICE U/S. 148 OF THE ACT TO THE ASSESSEE ON 26.3.2015. BUT THE ASSESSEE DID NOT APPEAR AND HAS ALSO NOT FILED RETURN IN RESPONSE TO TH E SAME. AO HAS ISSUED NOTICE U/S. 142(1) FOR 23.6.2016, 15.7.2015, BUT AGAIN ASSESSEE DID NOT APPEAR NOR FILED ANY RETURN. DUE TO CHANGE OF J URISDICTION AGAIN NOTICE U/S. 142(1) WAS ISSUED ON 12.8.2015 FIXING THE CASE FO R 26.8.2015 WHICH WAS RECEIVED BY THE ASSESSEE AND IN RESPONSE TO THE SAME THE AR OF THE ASSESSEE APPEARED ON 12.8.2015 AND FILED POWER OF ATT ORNEY, COPY OF ITR ALONGWITH COMPUTATION AND REQUESTED TO TREAT THE ORIG INAL RETURN FILED IN RESPONSE TO THE NOTICE U/S. 148 OF THE ACT. HE DRAW MY AT TENTION TOWARDS PAGE NO. 14 WHICH IS THE COPY OF THE NOTICE U/S. 148 OF THE ACT DATED 26.3.2015 AND ALSO THE PAGE NO. 16 WHICH THE COPY OF THE NOTICE U/S. 143(2) OF THE ACT DATED 12.8.2015 AND ALSO PAGE NO. 1 7 WHICH THE COPY OF THE REPLY FILED BY THE AR OF THE ASSESSEE DATED 07.9.2 015 IN WHICH THE ASSESSEE HAS FILED SOME DOCUMENTARY EVIDENCE WHICH THE COPY OF INCOME TAX RETURN ALONGWITH COMPUTATION OF INCOME FOR AY 20 08-09, COPY OF AUDIT REPORT FOR THE FY 2007-08 AND COPY OF AUDITABLE BALA NCE SHEET ALONGWITH COMPLETE ANNEXURE, TRADING AND PROFIT AND LOSS ACCOUNT W ITH COMPLETE 6 ANNEXURE. FINALLY HE STATED THAT AR OF THE ASSESSEE A PPEARED ON 12.8.2015 AND STATED THAT ORIGINAL RETURN FILED BY THE ASSESSEE MAY BE TREATED THE RETURN OF INCOME FILED IN RESPONSE TO TH E NOTICE U/S. 148 OF THE ACT, BUT ON THE SAME DATE THE AO GIVEN THE NOTICES TO THE ASSESSEE I.E. 12.8.2015 U/S. 143(2) OF THE ACT WHICH IS AT PAGE NO. 16 OF THE PAPER BOOK. HE STATED THAT IN RESPONSE TO THE RETURN FILED BY THE A SSESSEE WHICH IS A LETTER DATED 12.8.2015 WHEN THE ASSESSEES COUNSEL APPEA RED AND MADE THE STATEMENT ON THE SAME DATE THAT AO HAD ISSUED NOTICE D ATED 12.8.2015 IS INVALID, VOID ABINITIO FOR WANT OF VALID NOTICE U/S. 143(2) OF THE ACT. HE FURTHER SUBMITTED THAT THE ADDITIONAL GROUND IN IDE NTICAL FACTS HAS BEEN ACCEPTED AND ASSESSMENT U/S. 143(3) OF THE ACT WAS PASSE D WITHOUT PROPER ISSUE AND SERVICE OF NOTICE U/S. 143(2) OF THE ACT, WHICH WAS LATER QUASHED BY THE ITAT AND THE HONBLE HIGH COURT IN THE FOLLOWI NG CASES:- I) HONBLE DELHI HIGH COURT IN THE CASE OF DIRECTOR OF INCOM E TAX VS. SOCIETY FOR WORLDWIDE INTER BANK FINANCIAL, TELECOMMUN ICATIONS IN ITA NO. 441/2010, REPORTED AT 323 ITR 249 II) DELHI ITAT IN CASE OF MICRON ENTERPRISES PVT. LTD. VS. I TO IN I.T.A NO. 901/DEL/2016 (A.Y .2006-07) ORDER DATED 14/05/2 018 III) DELHI ITAT IN HARSH BHATIA CASE ITA NOS. 1262/& 1263/DEL /2017 [A.YS. 2008-09 & 2009-10] ORDER DATED 17.10.2017. IV) DELHI ITAT, IN THE CASE OF ASHTECH INDUSTRIES PVT. LTD. VS. DCIT IN ITA NO. 2332/DEL/2018 (AY 2009-10) DATED 20.12.201 8. 7 4. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND OPPOSED THE REQUEST OF LD. COUNSEL FOR THE ASS ESSEE AND PRAYED FOR DISMISSAL OF GROUND NO. 3, BECAUSE ASSESSEE DID NO T FILE RETURN UNDER SECTION 148 WITHIN THE SPECIFIED PERIOD. 5. I HAVE HEARD BOTH PARTIES AND PERUSED THE RECORDS, ESPECIALLY THE ASSESSMENT ORDER, PAPER BOOK AND THE IMPUGNED ORDER AS WELL AS THE NOTICE, I FIND THAT AO STARTED THE PROCEEDINGS U/S. 1 47 OF THE ACT AFTER RECORDING THE REASONS ON 26.3.2015 AND ACCORDINGLY ISSUED NOTICE U/S. 148 OF THE ACT TO THE ASSESSEE ON 26.3.2015. BUT THE ASSE SSEE DID NOT APPEAR AND HAS ALSO NOT FILED RETURN IN RESPONSE TO THE SAME. AO HAS ISSUED NOTICE U/S. 142(1) FOR 23.6.2016, 15.7.2015, BUT AGAIN ASSESS EE DID NOT APPEAR NOR FILED ANY RETURN. DUE TO CHANGE OF JURISDICTION AGAIN NOTICE U/S. 142(1) WAS ISSUED ON 12.8.2015 FIXING THE CASE FOR 26.8.2015 W HICH WAS RECEIVED BY THE ASSESSEE AND IN RESPONSE TO THE SAME THE AR OF T HE ASSESSEE APPEARED ON 12.8.2015 AND FILED POWER OF ATTORNEY, COPY OF ITR ALONGWITH COMPUTATION AND REQUESTED TO TREAT THE ORIGINAL RETUR N FILED IN RESPONSE TO THE NOTICE U/S. 148 OF THE ACT. AFTER PERUSING THE PAPER BOOK ESPECIALLY THE PAGE NO. 14 WHICH IS THE COPY OF THE NOTICE U/S. 148 OF THE ACT DATED 26.3.2015; PAGE NO. 16 WHICH THE COPY OF THE NOTICE U/ S. 143(2) OF THE ACT DATED 12.8.2015 AND ALSO PAGE NO. 17 WHICH IS THE COPY OF THE REPLY FILED BY THE AR OF THE ASSESSEE DATED 07.9.2015 IN WHICH THE ASSE SSEE HAS FILED SOME DOCUMENTARY EVIDENCE WHICH THE COPY OF INCOME T AX RETURN 8 ALONGWITH COMPUTATION OF INCOME FOR AY 2008-09, COPY OF AUDIT REPORT FOR THE FY 2007-08 AND COPY OF AUDITABLE BALANCE SHEET A LONGWITH COMPLETE ANNEXURE, TRADING AND PROFIT AND LOSS ACCOUNT WITH COMP LETE ANNEXURE, I FIND CONSIDERABLE COGENCY IN THE SUBMISSION OF THE ASSESSEE S COUNSEL THAT ASSESSEE APPEARED ON 12.8.2015 AND STATED THAT ORIGI NAL RETURN FILED BY THE ASSESSEE MAY BE TREATED THE RETURN OF INCOME FILED I N RESPONSE TO THE NOTICE U/S. 148 OF THE ACT, BUT ON THE SAME DATE THE AO GIVEN THE NOTICES TO THE ASSESSEE I.E. 12.8.2015 U/S. 143(2) OF THE ACT WHICH IS AT PAGE NO. 16 OF THE PAPER BOOK, WHICH SHOWS NON-APPLICATION OF MIND ON THE PART OF THE OF THE AO. THEREFORE, NOTICE UNDER SECTION 143(2) IS INVALID AND RESULTANTLY, THE ASSESSMENT IS VITIATED AND IS LIABLE TO BE QUASHED. I ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BE LOW AND QUASH THE REASSESSMENT PROCEEDINGS IN THE MATTER AND ALLOW THE L EGAL GROUND NO. 3 ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE. SINCE THE RE ASSESSMENT HAS BEEN QUASHED, THERE IS NO NEED TO ADJUDICATE THE OTHE R GROUNDS. MY AFORESAID VIEW IN ALLOWING THE GROUND NO. 3 WHICH IS LEGAL IN NATURE, IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE FOLLOW ING JUDGMENT/DECISIONS WHEREIN ON IDENTICAL FACTS AND CIRCUMSTA NCES OF THE CASE, THE REASSESSMENT WAS QUASHED. 5.1 THE HONBLE DELHI HIGH COURT IN THE CASE OF DIR ECTOR OF INCOME TAX VS. SOCIETY FOR WORLDWIDE INTERBANK FINANCIAL TELECOMMUNIC ATIONS (2010) 323 ITR 249 (DEL.) HAS HELD AS UNDER : 9 BOTH THE CIT(A) AND THE TRIBUNAL HAVE RETURNED A CO NCURRENT AND CLEAR FINDING OF FACT THAT THE NOTICE UNDER S. 143(2) W AS 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 A SSESSMENT 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 ISSU ED 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 RAIS ED BEFORE THE LOWER APPELLATE AUTHORITIES. CONSEQUENTLY, THE SAI D 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 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 MENTION ED AS 23 RD MARCH, 2000. ASSUMING THE AFORESAID TO BE TRUE, THE NOT ICE WAS SERVED ON THE AUTHORIZED REPRESENTATIVE SIMULTANEOUSLY ON HIS FILING THE RETURN WHICH CLEARLY INDICATES THAT THE NOTICE WAS R EADY 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 10 ASSESSEE CAME TO FILE THE RETURN, THE NOTICE UNDER S. 143( 2) WAS SERVED UPON THE AUTHORIZED REPRESENTATIVE BY HAND. TH US, IT WOULD AMOUNT TO GROSS VIOLATION OF THE SCHEME OF S. 143(2). 5.1.1. 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. 5.2 THE ITAT, DELHI 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 HAS HELD AS UNDER : 10. IT WAS FURTHER ARGUED BY THE LD. COUNSEL FOR THE 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 APPARENT FROM TH E ASSESSING OFFICERS ORDER IN PARA 3 AT PAGE 1. THER EFORE, THE ASSESSING OFFICER HAS NOT APPLIED HIS MIND INDEPENDENTLY WHILE ISSUING NOTICE U/S 148 OF THE A CT. ON THIS COUNT ALSO, THE ASSESSMENT DESERVES TO BE QUAS HED. ACCORDINGLY, UNDER THE FACTS AND CIRCUMSTANCES OF T HE CASE, THE LEGAL GROUNDS OF THE ASSESSEE ARE ALLOWED . 11 5.3 THE ITAT, DELHI BENCH IN THE CASE OF MICRON EN TERPRISES PVT. LTD. VS. ITO ITA NO. 801/DEL/2016 (AY 2006-07) VIDE ORDER DA TED 14.5.2018 HAS HELD AS UNDER:- 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 THE PAPER BOOK, IN WHICH, ASSESSEE EXPLAINED THAT THE RETURN ALREADY FILED UNDER SECTION 139(1) MAY BE TREA TED AS 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 12 HAVE RETURNED A CONCURRENT AND CLEAR FINDING OF FACT TH AT THE NOTICE UNDER S. 143(2) WAS ISSUED ON 23RD MARCH, 2000 AND SINCE THE RETURN WAS FILED ON 27TH MARCH, 200 0, 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 F IRST TIME THAT THE COUNSEL FOR THE APPELLANT CONTENDS THAT THE NOTICE, IN FACT, WAS ISSUED ON 27TH MARCH, 2000 AND NOT ON 23RD 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 F IRST TIME. THE APPELLANT HAS STATED THAT THE RETURN WAS FIL ED BY THE ASSESSEE ON 27TH MARCH, 2000 AND THE NOTICE UNDER S. 143(2) WAS SERVED UPON THE AUTHORIZED REPRESENTATIVE O F 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 23RD 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 T HE NOTICE WAS READY EVEN PRIOR TO THE FILING OF THE RETU RN. THE 13 PROVISIONS OF S. 143(2) MAKE IT DEAR THAT THE NOTICE CAN ONLY BE SERVED AFTER THE AO HAS EXAMINED THE RETURN F ILED 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 B Y 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 23RD MARCH, 2000 WHEN THE RETURN WAS FILED ON 27TH MARCH, 2000 IS INVALID. 6. HE HAS SUBMITTED THAT THE SAME ORDER HAVE BEEN FOLLOWED 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 TRIBUNAL HELD AS UNDER : 10. IT WAS FURTHER ARGUED BY THE LD. COUNSEL FOR THE 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 APPARENT FROM THE ASSESSING OFFICERS ORDER IN PARA 14 3 AT PAGE 1. THEREFORE, THE ASSESSING OFFICER HAS NOT APPLIED HIS 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 SPECI FIED PERIOD. THEREFORE, THIS GROUND OF APPEAL OF ASSESSEE MAY BE DISMISSED. 8. AFTER CONSIDERING THE RIVAL SUBMISSIONS, I AM OF TH E VIEW THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE O F DIRECTOR OF INCOME TAX VS. SOCIETY FOR WORLDWIDE INTERBANK FINANCIAL TELECOMMUNICATIONS (SUPRA) AND ORDER OF ITAT, DELHI BENCH IN THE CASE OF SHRI HARSH BHATIA, NEW DELHI VS. ITO, WARD-50(3), NEW DELHI (SUPRA). IT IS AN ADMITTED FACT THAT ASSESSEE FILED REP LY 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 R ESPONSE TO THE NOTICE UNDER SECTION 148 OF THE I.T. ACT. THE A. O. ON THE SAME DAY SERVED NOTICE UNDER SECTION 143(2) UPON ASSESSEE-COMPANY WHOSE SIGNATURE TALLY ON THE SAID NOTICE. THEREFORE, NOTICE ISSUED UNDER SECTION 143(2) IS 15 INVALID AND RESULTANTLY, THE ASSESSMENT IS VITIATED AND IS LIABLE TO BE QUASHED. I, ACCORDINGLY, SET ASIDE THE ORD ERS OF THE AUTHORITIES BELOW AND QUASH THE RE-ASSESSMENT PROCEEDINGS IN THE MATTER. RESULTANTLY, ALL ADDITIONS STANDS DELETED. IN VIEW OF THE ABOVE, THERE IS NO NEED TO DECIDE OTHER CONTENTIONS RAISED BY LEARNED COUNSEL FOR THE ASSESSEE. 9. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALLOW ED. ORDER PRONOUNCED ON 14-01-2019. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE:14/01/2019 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5. DR , ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES