MEISSA G. SAHNI, MUMBAI V. ASST CIT CIR 35(1), MUMBAI

ITA 3878/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6992 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 26-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ARIJARIA
• Keywords: Opportunity of being heard; Principle of natural justice; Valuation report
• Section: 143(3); 234B; 143(1); 54

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH , MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER & SHRI RAJESH KUMAR, ACCOUNTANT MEMBER . / ITA NO. 3878 /MUM/201 7 ( / ASSESSMENT YEAR : 20 1 2 - 20 1 3 ) ME L ISSA G. SAHNI 106, AARAM NAGAR, PART - 2, J.P.TD, VERSOVA, MUMBAI - 400601 VS. ACIT, CIR - 35(1), BKC BANDRA, MUMBAI - 400051 ./ PAN NO. : A A XPV 3054 G ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : SHRI NEERAJ MANGLA , AR /REVENUE BY : SHRI CHAITANYA ARIJARIA , SR.CIT DR / DATE OF HEARING : 28 / 11 /201 8 / DATE OF PRONOUNCEMENT 08 / 01 /201 9 / O R D E R PER SHRI RAJESH KUMAR , A M : THIS APPEAL BY ASSESSEE ARISES OUT OF THE ORDER OF THE CIT(A) 46 , MUMBAI, DATED 08.03.2017 , WHICH IN TURN HAS ARISEN OUT OF THE ORDER PASSED BY THE ASSESSING OFFICER U/S. 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) RELATING TO A. Y. 20 1 2 - 1 3 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THAT THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961 ON 30/03/2015 WHICH IS SUBSEQUENTLY UPHELD BY THE LD. CIT(A) IS PERVERSE TO THE LAW AND TO THE FACTS OF THE CASE BECAUSE OF MAKING ASSESSMENT WITHOUT ISSUING AND SERVING THE MANDATORY NOTICE SPECIFIED UNDER SECTION 143(2) OF THE ACT. 2. THAT THE LD. CIT(A) GROSSLY ERRED IN LAW AND TO THE FACTS OF THE CASE IN PRESUMING AN UN - SUBSTANTIATED AND UN - CORROBORATIVE D OCUMENT DATED 07/08/2012 TO BE THE NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT DESPITE THE FACT THAT THE ERSTWHILE AO HAS SPECIFICALLY MENTIONED IN THE ASSESSMENT ORDER THAT THE NOTICE U/S 143(2) OF THE ACT WAS ISSUED AND SERVED ON ITA NO . 3878 / 1 7 2 30/09/2013 AND THE ITO HAVING CURRENT JURISDICTION HAS CONFIRMED OF NOT ISSUING ANY SUCH NOTICE ON 30/09/2013. 3. THAT THE LD. CIT(A) GROSSLY ERRED IN LAW AND TO THE FACTS OF THE CASE IN PRESUMING THE DOCUMENT DATED 07/08/2013 TO BE A VALID NOTICE U/S 143(2) OF THE ACT DESPIT E OF THE FACT THAT THE SAID NOTICE DIDN'T EVEN BEAR THE NAME OF THE ITO ISSUING THE SAME, HIS OFFICE ADDRESS OR SEAL. ALSO, THE SIGNATURE ON THE ALLEGED NOTICE APPEARS TO BE FALSE. 4. THE APPELLATE ORDER UPHOLDING THE ASSESSMENT ORDER PASSED U/S 143(3) O F THE ACT IS FURTHER AGAINST THE FACTS OF THE CASE BECAUSE OF PRESUMING THE DOCUMENT DATED 07/08/2013 TO BE A VALID NOTICE ISSUED U/S 143(2) OF THE ACT DESPITE THE FACT THAT EVEN THE COPY OF THE ORDER SHEET SUPPLIED BY THE ITO TO LD. CIT(A) DIDN'T MENTION OF ISSUE OF ANY SUCH NOTICE TO THE APPELLANT EITHER ON 07/08/2013 OR ON 30/09/2013. 5. THAT THE APPELLATE ORDER PASSED IN THE CASE OF THE APPELLANT IS FURTHER NOT TENABLE UNDER THE LAW BECAUSE OF INVOKING THE PROVISIONS OF SEC. 292BB OF THE ACT WHICH COU LD HAVE ONLY BE INVOKED IN CASE ANY NOTICE U/S 143(2) OF THE ACT WOULD HAVE BEEN ISSUED TO THE APPELLANT WITHIN THE TIME LIMIT SPECIFIED U/S 143(2) OF THE ACT. 6. THAT THE ASSESSMENT ORDER PASSED U/S 143(2) OF THE ACT IS FURTHER AGAINST THE PROVISIONS OF LAW BECAUSE OF ALLOWING UNAUTHORIZED PERSONS TO MAKE SUBMISSIONS IN THE CASE OF THE APPELLANT. 7. THAT THE APPELLATE ORDER PASSED BY THE LD. CIT(A) IS FURTHER AGAINST THE PROVISIONS OF LAW AND THE PRINCIPLES OF NATURAL JUSTICE IN HOLDING THE PAUCITY OF TIME TO BE THE REASON OF THE NON - ISSUE OF SHOW CAUSE NOTICE DESPITE THE FACT THAT THE LD. AO CONDUCTED HEARING EVEN AFTER RECORDING HIS OBJECTIONS IN RESPECT OF THE SHARE OF THE APPELLANT IN THE PROPERTY. 8. THAT THE LD. AO GROSSLY ERRED IN LAW AS WELL A S FACTS OF THE CASE IN MAKING ADDITION OF RS. 4,70,17,521 / - PRESUMING THE SHARE OF THE APPELLANT IN THE PROPERTY SOLD TO BE ONLY 1 / 10 TH ALLEGING THAT THE AR OF THE APPELLANT HAS ACCEPTED ERRONEOUS COMPUTATION. 9. THAT THE LD. CIT(A) GROSSLY ERRED IN LAW A ND TO THE FACTS OF THE CASE IN HOLDING THE SHARE OF THE APPELLANT IN THE PROPERTY TO BE 1710 TH ONLY AS ASSESSED BY THE AO BY NOT ADJUDICATING THE MERITS OF THE CASE AND HOLDING THAT THE MATTER REGARDING THE SHARE OF THE APPELLANT IN THE PROPERTY IS IN DISP UTE AND PENDING BEFORE THE HON'BLE BOMBAY HIGH COURT AND IS IN NATURE OF CIVIL PROCEEDINGS. ITA NO . 3878 / 1 7 3 10. THAT THE LD. AO GROSSLY ERRED ON FACTS OF THE CASE IN MAKING DISALLOWANCE OF EXPENSES OF RS. 9,00,000 / - ON TRANSFER OF PROPERTY AND EXPENSES ON PURCHASE OF BAN DRA PROPERTY WITHOUT ALLOWING ANY OPPORTUNITY OF BEING HEARD IN THIS REGARD. 11. THAT THE LD. CIT(A) GROSSLY ERRED IN LAW IN CONFIRMING THAT THE EXEMPTION UNDER SECTION 54 OF THE ACT IS ALLOWABLE IN RESPECT OF ONLY ONE NEW HOUSE PROPERTY DESPITE THE FACT THAT THE AMENDMENT IN THE PROVISIONS OF SEC. 54 OF THE ACT WAS MADE BY FINANCE ACT 2014. 12. THAT THE APPELLANT ASSAILS HIS RIGHT TO AMEND, ALTER, CHANGE ANY GROUNDS OF APPEAL OR TAKE ANY FURTHER GROUND AT ANY TIME EVEN DURING THE COURSE OF HEARING OF I NSTANT APPEAL. PRAYER 1. THAT T HE ASSESSMENT ORDER PASSED U/S. 143(3) OF THE ACT WITHOUT ISSUING MANDATORY NOTICE U/S 143(2) OF THE ACT MAY KINDLY BE ANNULLED. 2. THAT THE ILLEGAL AND IMPUGNED ADDITIONS MADE IN THE DECLARED INCOME OF THE APPELLANT MAY PLEASE BE DELETED / QUASHED. 3. THAT THE INTEREST CHARGED U/S 234B OF THE ACT MAY ALSO BE DELETED BEING CONSEQUENTIAL TO THE ADDITIONS MADE AND RELIEF CLAIMED THEREFROM. 4. THAT THE INITIATION OF PENALTY U/S 271(1 )(C) OF THE ACT, MAY PLEASE BE QUASHED BEING CONSEQUENTIAL TO THE ADDITIONS MADE AND RELIEF CLAIMED THEREFROM. 5. ANY OTHER RELIEF WHICH THIS HON'BLE FORUM MAY PLEASE BE DEEMED FIT AND PROPER IN THE FACTS AND CIRCUMSTANCES OF THE CASE. IT IS PRAYED ACCORDINGLY. 3. THE ASSESSEE HAS CHALLENG ED THE ORDER OF THE CIT(A) ON LEGAL ISSUE AS WELL AS ON MERIT. THE LEGAL ISSUE CHALLENGED BY THE ASSESSEE IS QUA THE NON - SERVICE OF NOTICE U/S 143(2) OF THE I.T. ACT AND THE CONSEQUENT ASSESSMENT ORDER PASSED BY THE LD. AO IS WITHOUT JURISDICTION AND BAD IN LAW. 4. WE WOULD LIKE TO DECIDE THE LEGAL ISSUE FIRST, WHETHER, THE NON - SERVICE OF NOTICE U/S 143(2) WOULD GO TO THE ROOT OF THE ASSESSMENT ITA NO . 3878 / 1 7 4 PROCEEDINGS AND THE SAID PROCEEDINGS WHETHER SUSTAINABLE IN THE EYES OF LAW. 5. THE FACTS, IN BRIEF, ARE THAT TH E ASSESSEE FILED RETURN OF INCOME ON 26/07/2012, DECLARING AN INCOME OF RS.1,34,43,720/ - WHICH WAS PROCESSED U/S 143(1) OF THE ACT. THEREAFTER, THE CASE OF ASSESSEE WAS FIXED UNDER CASS. ACCORDING TO THE AO THE NOTICE ISSUED U/S 143(2) OF THE ACT WAS ISS UED ON 30/09/2013 AND DULY SERVED UPON THE ASSESSEE, WHEREAS, THE ASSESSEE HAS CLAIMED THAT THE NOTICE HAS NOT AT ALL BEEN SERVED ON THE ASSESSEE. DURING THE YEAR, THE ASSESSEE HAS SOLD A PROPERT Y(FLAT) FOR A CONSIDERATION OF RS.9 CRORES ON 05/05/2011 AND THE SAID PROPERTY WAS LOCATED AT OM GAGAN GIRI, 7 TH ROAD KHAR WEST, MUMBAI - 52 AND THE ASSESSEE ALSO RETURNED CAPITAL GAIN OF RS.1,16,41,300/ - AFTER CLAIMING THE DEDUCTION OF INDEXED COST ON THE BASIS OF VALUATION REPORT FROM A REGISTERED VALUER . THE CASE WAS SELECTED FOR SCRUTINY AND THE AO COMPLETED THE ASSESSMENT U/S.143(3) OF THE ACT DETERMINING THE TOTAL INCOME AT RS.6,07,54,242/ - AFTER MAKING AN ADDITION OF RS.4,70,17,521/ - UNDER THE HEAD LONG TERM CAPITAL GAINS AND RS.3,00,000/ - UNDER THE HEAD INCO ME FROM HOUSE PROPERTY. 6 . IN THE APPELLATE PROCEEDINGS THE ASSESSEE CHALLENGED THE NON - SERVICE OF NOTICE. THE LD. CIT(A) ALSO DISMISSED THE APPEAL OF THE ASSESSEE ON THE LEGAL ISSUE OF NON - SERVICE OF NOTICE U/S.143(2) OF THE ACT BY OBSERVING AS UNDER : - 5.10 IN THE PRESENT CASE, IT IS CLEAR THAT THE NOTICE U/S.!43(2) WAS DULY ISSUED WITHIN TIME, THE ASSESSEE WAS WELL AWARE OF THE PROCEEDINGS AND NO OBJECTIONS WERE RAISED DURING THE ASSESSMENT PROCEEDINGS. HAVING ONCE COMPLIED WITH THE PROCEEDINGS, THE ITA NO . 3878 / 1 7 5 PRO VISIONS OF SECTION 292BB PROVIDE THE SAFE GROUND FROM RAISING ISSUES PERTAINING TO SERVICE LATER. HENCE, THE PROCEEDINGS CANNOT BE CHALLENGED ON THIS GROUND NOW AS NO OBJECTION WAS RAISED BEFORE THE ASSESSING OFFICER. 7 . LD. AR VEHEMENTLY SUBMITTED BEFOR E US THAT THE ASSESSMENT ORDER PASSED BY THE AO WITHOUT SERVING NOTICE U/S.143(2) OF THE ACT IS INVALID AND BAD IN LAW. LD. AR FURTHER SUBMITTED THAT THE ASSESSEE RECEIVED NOTICE U/S.142(1) OF THE ACT DATED 16.02.2015 WHICH WAS DULY COMPLIED WITH BY THE AS SESSEE BY FURNISHING OF PARTICULARS /DETAILS OF INCOME AS CALLED FOR BY THE AO. IT WAS FURTHER SUBMITTED BY THE LD. AR THAT IT IS MANDATORY TO SERVE NOTICE U/S.143(2) OF THE ACT WITHIN SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS F URNISHED BY THE ASSESSEE UNDER THE PROVISIONS OF SECTION 143(2)(II) OF THE ACT, WHICH WAS NEVER SERVED ON THE ASSESSEE. LD. AR ALSO SUBMITTED THAT THE CIT(A) CALLED FOR THE REMAND REPORT FROM THE AO WHICH WAS SENT BY THE AO ON 14.10.2016 IN WHICH THE AO ST ATED THAT NOTICE U/S.143(2) WAS GENERATED ON 7.8.2013 AND SERVED ON THE ADDRESS OF THE ASSESSEE BEING PLOT NO.537, 17 TH ROAD, KHAR (W), MUMBAI - 400052. LD. AR FURTHER SUBMITTED THAT THE AO NEVER STATED THAT THE NOTICE U/S.143(2) WAS SERVED ON THE ASSESSEE . LD. AR ALSO PLACED BEFORE THE BENCH COPY OF THE ORDER SHEET WHICH WAS TAKEN BY THE ASSESSEE THROUGH RTI IN WHICH THERE IS NO MENTION OF ANY NOTICE EITHER GENERATED OR ISSUED OR SERVED ON THE ASSESSEE AS REQUIRED UNDER THE PROVISIONS OF SECTION 143(2)(II) OF THE ACT. LD. AR SUBMITTED THAT THE ADDRESS WHICH IS SAID TO BE MENTIONED BY THE AO IN SENDING THE NOTICE U/S.143(2) OF THE ACT WAS OF THAT PROPERTY WHICH WAS SOLD BY THE ASSESSEE ON WHICH THE CAPITAL GAIN WAS DISCLOSED IN THE ITA NO . 3878 / 1 7 6 RETURN OF INCOME. LD. AR A LSO BROUGHT TO THE NOTICE OF THE BENCH THAT IN THE RETURN OF INCOME FILED FOR THE ASSESSMENT YEAR 2012 - 2013 VIDE ACKNOWLEDGMENT DATED 20 TH JULY, 2012 THE ASSESSEE HAS CORRECTLY STATED THE NEW ADDRESS AS FLAT NO. 106, AARAM NAGAR, PART - 2, J.P.ROAD, VERSOVA, ANDHERI WEST, MUMBAI - 400061, COPY OF WHICH IS FILED AT PAGE 1 OF THE PAPER BOOK. LD. AR THEREFORE, SUBMITTED THAT ORDER PASSED BY THE AO WITHOUT ISSUANCE OF MANDATORY NOTICE U/S.143(2) OF THE ACT IS NOT TENABLE UNDER LAW AND IS BAD IN LAW AND IS TO BE QU ASHED. LD. AR TO SUPPORT HIS CLAIM, HAS RELIED ON SERIES OF FOLLOWING DECISIONS : - A) ACIT & ANR. VS. HOTEL BLUE MOON: 321 ITR 362 (SC) B) HARI STEELS AND GENERAL INDUSTRIES LIMITED VS. DCIT, ITA NO. 6199/DEL/2014 ORDER DT, 05/11/2018 C) ALPINE ELECT RONICS ASIA PTE LTD. VS. DGIT & ORS. 341 ITR 247 (DEL.) D) ITO VS TILAK RAJ SATIJA, (2013) 37 CCH 0149 (DEL)(TRIB) E) RAJ KUMAR CHAWLA &ORS. VS. ITO, (2005) 94 ITD 1 (SB)(DEL)(TRIB) F) SERVITE SISTERS SOCIETY VS. ACIT, (2010) 37 DTR 0371 (INDORE)(TRIB ) 8. LD. AR ALSO REFERRED TO THE SECOND REMAND REPORT DATED 21.01.2017 FILED BEFORE THE CIT(A) BY THE AO IN WHICH THE AO HAS MENTIONED THAT NOTICE ISSUED U/S.143(2) OF THE ACT WAS UNSERVED WHICH IS SELF - EXPLANATORY OF THE FACT THAT THE ASSESSEE HAS NOT BE EN SERVED ANY SUCH NOTICE. FINALLY, LD. AR SUBMITTED THAT IT IS CLEAR FROM THE ORDER - SHEET PROVIDED BY THE AO AND REMAND REPORT THAT NO NOTICE U/S.143(2) OF THE ACT WAS EVER GENERATED/ISSUED/SERVED ON THE ASSESSEE BY THE AUTHORITIES, THEREFORE, THE ASSESSM ENT MADE BY THE AO MAY KINDLY BE QUASHED. LD. AR ALSO REFERRED TO THE FINDING OF LD. CIT(A) THAT ASSESSEE HAS NOT OBJECTED TO THE SERVICE OF NOTICE U/S.143(2) OF THE ACT DURING THE ASSESSMENT ITA NO . 3878 / 1 7 7 PROCEEDINGS AND THIS IS COVERED BY THE PROVISIONS OF SECTION 29 2BB OF THE ACT. LD. AR SUBMITTED THAT SINCE THE DEFECT OF NON - SERVICE OF NOTICE U/S.143(2) OF THE ACT IS NOT CURABLE AND THE REVENUE CANNOT BE ALLOWED TO TAKE SHELTER UNDER THE PROVISIONS OF SECTION 292BB OF THE ACT. LD. AR FURTHER SUBMITTED THAT SINCE NO NOTICE HAS BEEN SERVED ON THE ASSESSEE THE CASE OF THE ASSESSEE IS COVERED BY THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT - II, LUCKNOW VS. M/S SALARPUR COLD STORAGE (PVT.) LTD. , BARABANKI 2014 - TIOL - 152 2 - HC - ALL - IT . LD. AR FINALLY PRAYED B EFORE THE BENCH THAT THE ORDER PASSED BY THE CIT(A) UPHOLDING THE ORDER OF AO DESPITE NON - SERVICE OF NOTICE U/S.143(2) OF THE ACT WHICH GOES TO THE ROOT OF THE PROCEEDINGS MAY KINDLY BE SET ASIDE AND THE ASSESSMENT ORDER BE QUASHED. 9 . ON THE OTHER HAND, LD.DR RELIED HEAVILY ON THE ORDER OF AO AND CIT(A) AND SUBMITTED THAT THE ASSESSEE SHOULD NOT BE ALLOWED TO RAISE THIS ISSUE BEFORE THE TRIBUNAL AS THE ASSESSEE HAS PARTICIPATED IN THE ASSESSMENT PROCEEDINGS AND, THEREFORE, CASE OF THE ASSESSEE IS COVERED U/S.292BB OF THE ACT AS THE ASSESSEE HAS NOT RAISED ANY OBJECTION BEFORE COMPLETION OF THE ASSESSMENT IN THE CASE OF THE ASSESSEE. LD. DR FURTHER SUBMITTED THAT THE AO HAS DULY ISSUED NOTICE U/S.143(2) OF THE ACT TO THE ASSESSEE AND AS PER THE ASSESSMENT R ECORD THE NOTICE WAS SENT TO THE OLD ADDRESS AND NOT TO THE NEW ADDRESS, HOWEVER, THE FACT REMAINS THAT THE ASSESSEE HAS ATTENDED THE PROCEEDINGS BEFORE THE AO WITHOUT RAISING ANY OBJECTION AND, THEREFORE, THE GROUND RAISED BY THE ASSESSEE SHOULD BE DISMIS SED. ITA NO . 3878 / 1 7 8 10 . AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD INCLUDING THE IMPUGNED ORDER AND CASE LAWS RELIED UPON BY THE LD. AR, WE FIND THAT IN THIS CASE THE NOTICE HAS BEEN SENT TO THE WRONG ADDRESS BY THE AO I.E. THE ADDRESS OF THE FLAT WHICH NO MORE BELONGED TO T THE ASSESSEE WHICH WAS SOLD AND CAPITAL GAIN QUA HAS BEEN OFFERED IN THE RETURN OF INCOME BY THE ASSESSEE. WE FURTHER FIND THAT THE ASSESSEE HAS ALSO MENTIONED NEW ADDRESS IN THE RETURN OF INCOME FILED BY THE ASSESSEE IN T HE INSTANT YEAR, A COPY OF WHICH IS PLACED AT PAGE 1 OF THE PAPER BOOK. THUS, IT IS CLEAR THAT THE NOTICE HAS BEEN SENT ON A WRONG ADDRESS AND AS PER THE REMAND REPORT SUBMITTED BY THE AO DATED 14.10.2016, A COPY OF WHICH IS FILED AT PAGE 137 OF THE PAPER BOOK, THE AO STATED AS UNDER : - NOTICE U/S.143(2) WAS GENERATED ON 07 - 08 - 2013 AND SENT ON THE ADDRESS PLOT NO. 537, 17 TH ROAD, KHAR (W), MUMBAI - 400052. 11. THUS, IT IS CLEAR FROM THE ABOVE THAT NOTICE WAS NEVER SERVED ON THE ASSESSEE. WE HAVE ALSO EXAMI NED THE COPY OF ORDER - SHEET WHICH WAS PRODUCED BEFORE US DURING THE COURSE OF HEARING AND NOWHERE IN THE ORDER - SHEET , THE AO HAS RECORDED THAT NOTICE U/S.143(2) OF THE ACT WAS EVER ISSUED OR SERVED UPON THE ASSESSEE. UNDER THESE CIRCUMSTANCES, WE ARE OF TH E VIEW THAT THERE WAS NO N ISSUE AND SERVICE OF MANDATORY NOTICE U/S.143 (2) OF THE ACT ON THE ASSESSEE AND THE CASE OF THE ASSESSEE IS SUPPORTED BY THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF ACIT & ANR. VS. HOTEL BLUE MOON, 321 ITR 362 (SC) AND AL PINE ELECTRONICS ASIA PTE LTD. VS. DGIT & ORS., 341 ITR 247 (DEL) AND VARIOUS OTHER DECISIONS CITED BY THE ASSESSEE AS HAS BEEN MENTIONED HEREINABOVE. WE THEREFORE, RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE VARIOUS HONBLE ITA NO . 3878 / 1 7 9 COURTS AND JUDICIAL FORUM S, SET ASIDE THE ORDER OF CIT(A) AND HOLD THAT IN ABSENCE OF SERVICE OF NOTICE U/S.143(2) OF THE ACT, THE ASSESSMENT FRAMED BY THE AO IS BAD IN LAW AS THE NON SERVICE GOES TO ROOT OF THE ASSESSMENT AND THE SAID DEFECT IS NON CURABLE AND NOT COVERED BY TH E PROVISIONS OF SECTION 292BB OF THE ACT. THEREFORE THE ORDER OF CIT(A) IS NOT CORRECT AND CANNOT BE SUSTAINED AND THE SAME IS HEREBY QUASHED AS BEING WITHOUT JURISDICTION. SINCE WE HAVE DECIDED THE LEGAL ISSUE IN FAVOUR OF THE ASSESSEE, THEREFORE, OTHER GROUNDS RAISED BY THE ASSESSEE ON MERITS NEED NO ADJUDICATION. 12 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 08 / 01 /201 9 . SD/ - ( MAHAVIR SINGH ) SD/ - (RAJESH KUMAR) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 08 / 01 /201 9 . . / PRAKASH KUMAR MISHRA , S R.PS. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSISTANT REGISTRAR ) , / ITAT, MUMBAI 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. ( ) / THE CIT(A), MUMBAI 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//