THE ITO 12(3)(2), MUMBAI V. SHRI NAROTTAMDAS GOEL, MUMBAI

ITA 5028/MUM/2008

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8496 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 18-09-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 08-08-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BABAN PATIL
• Assessee Lawyers: NAROTTAMDAS GOEL
• Keywords: Business income; Speculation loss
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO. 5854/MUM/2006 ASSESSMENT YEAR: 2003-04 INCOME TAX OFFICER, WD. 12(3)(2), R.NO.102, AAYAKAR BHAVAN, M.K. MARG, MUMBAI-400 020 VS. SHRI NAROTTAMDAS GOEL 124, NCPA APTS., 12 TH FLOOR, B WING, NARIMAN POINT, MUMBAI-400 021 PAN NO: AAEPG 5649 P (APPELLANT) (RESPONDENT) CO NO. 118/MUM/2007 ASSESSMENT YEAR: 2003-04 SHRI NAROTTAMDAS GOEL 124, NCPA APTS., 12 TH FLOOR, B WING, NARIMAN POINT, MUMBAI-400 021 PAN NO: AAEPG 5649 P VS. INCOME T AX OFFICER, 12(3)(2), AAYAKAR BHAVAN, M.K. MARG, MUMBAI. (APPELLANT) (RESPONDENT) & ITA NO. 5028/MUM/2008 ASSESSMENT YEAR: 2005-06 INCOME TAX OFFICER, WD. 12(3)(2), R.NO.102, AAYAKAR BHAVAN, M.K. MARG, MUMBAI-400 020 VS. SHRI NAROTTAMDAS GOEL 124, NCPA APARTMENTS., 12 TH FLOOR, B WING, NARIMAN POINT, MUMBAI-400 021 PAN NO: AAEPG 5649 P (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI BABAN PATIL RESPONDENT BY : SHRI NAROTTAMDAS GOEL DATE OF HEARING : 18.09.2012 DATE OF PRONOUNCEMENT : 03.10.2012 ORDER PER RAJENDRA, AM: CHALLENGING THE ORDERS OF THE CIT(A)-XII AND CIT(A) -23, MUMBAI DATED 14.06. 2011 (AY2003-04) AND 29.05.2008 (AY2005-06) RESPECTIVELY, THE ASSESSING OFFICER (AO) HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL FOR THE ASSESSMENT YEAR (AY) 2003-04: ITA NO. 5854/MUM/2006 ITA NO. 5028/MUM/2008 2 1.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD, CIT(A) ERRED IN DIRECTING THE ASSESSING OFFICER TO TREAT THE LOSS OF RS.6,41,470/ - AS BUSINESS LOSS & ERRED IN DIRECTING THE SAME TO BE ALLOWED TO BE CARRIED FORWARD AS BUSINES S LOSS TO BE SET-OFF AGAINST BUSINESS INCOME IN THE SUBSEQUENT YEARS. 2.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW DEDUCTION OF INTEREST EX PENDITURE OF RS.15,48,694/- AS BUSINESS (AND NOT FOR SPECULATIVE BUSINESS) BY FOLLOWING HIS PREDECESSORS ORDER. 3.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. C1T(A) ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW DEDUCTION OF INTEREST OF RS.15,48,694/- AS EXPENDITURE FOR BUSINESS BY FOLLOWING THE PREDECESSORS ORDER DT.31.10.2005. 4.THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUND(S) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER RESTORED. 5.THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY FOLLOWING GROUNDS OF CROSS OBJECTION WERE FILED BY THE ASSESSEE: 1.ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AN D IN LAW NOTICE ISSUED U/S. 143 (2) HAVE NEVER BEEN SERVED ON THE APPELLANT. WHILE GOING TH ROUGH THE RECORD/DOCUMENTS SUPPLIED BY THE DEPARTMENT UNDER THE PROVISIONS OF THE RIGHT TO INFORMATION ACT, IT HAS BEEN OBSERVED THAT THE NOTICE ISSUED ON 27.10.2004 BY THE LEARNED ASSE SSING OFFICER U/S. 143 (2) HAS NEVER BEEN SERVED ON THE ASSESSEE WITHIN 12 MONTHS FROM OUR FI LING OF THE RETURN. HENCE ACTION OF THE LEARNED ASSESSING OFFICERS ASSESSMENT ORDER IS ARB ITRARY ILLEGAL & BAD IN LAW AND LIABLE TO BE QUASHED. 2.ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AN D IN LAW THE LEARNED ASSESSING OFFICER ERRED IN SELECTING THE CASE ISSUING NOTICE U/S. 143 (2) WITHOUT PROPER APPROVAL OF THE AUTHORITIES VESTED WITH SUCH POWERS, ARE REQUIRED U NDER THE INSTRUCTIONS OF CBDT. 3.THE CROSS OBJECTJON AS S TATED ARE INDEPENDENT OF EACH OTHER. 4.THE APPELLANT CRAVES, TO LEAVES, TO ADD, ALTER OR AMEND THE CROSS-OBJECTION OF APPEAL BEFORE OR AT TIME OF HEARING OF THE APPEAL. FOR THE A.Y. 2005-06, AO HAD RAISED THE FOLLOWING G ROUNDS OF APPEALS: 1WHETHER ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THE SERVICE OF NOTICE U/S 143(2) AS INVALID AND THEREBY TREATING THE ASSESSMENT AS INVALID.. 2.THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUND(S) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER RESTORED. 3.THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUNDS OR ADD A NEW GROUND WHICH MAY BE NECESSARY. ADDITIONAL GROUNDS OF APPEAL, FILED FOR THE SAME AY ON 07.10.2009, READ AS UNDER : 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN L AW ,THE LD.CIT(A) ERRED IN TREATING THE BUSINESS INCOME ON SALE OF STOCK OF SHARES AS L ONG TERM CAPITAL GAIN OF RS.77,84,679/- ON SALE OF SHARES. 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD.CIT(A)ERRED IN ALLOWING THE RELIEF ON ACCOUNT OF TRAVELLING & CONVEYANCE, R EPAIRS & MAINTENANCE, BROKERAGE & MOTOR CAR EXPENSES. 3.ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW ,THE LD.CIT (A)ERRED IN TREATING THE SPECULATION LOSS OF RS.11,91,523/- AS BUSINESS LOSS. 4. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD.CIT(A)ERRED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER OF RS.13 ,50,391/- ON ACCOUNT OF DIVIDEND INCOME. 5.ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) ERRED IN ITA NO. 5854/MUM/2006 ITA NO. 5028/MUM/2008 3 DELETING THE ADDITION MADE BY THE ASSESSING OFFICER OF RS.1,00,000/- ON ACCOUNT OF LOW WITHDRAWALS. 6. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A ) ON THE ABOVE GROUND(S) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER RESTORED. 7. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER AN Y GROUNDS OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 2. AY 2003-04.(APPEAL AND CROSS OBJECTIONS)- THE ASSESSEE, AN INDIVIDUAL FILED ITS RETURN OF INC OME ON 25.04.2003 DECLARING INCOME AT RS. 33,369/-. THE RETURN WAS PROCESSED U/S.143(1 ) OF THE INCOME-TAX ACT, 1961 (ACT).LATER ON, THE CASE WAS SELECTED FOR THE SCRUT INY. ASSESSMENT WAS FINALISED U/S.143(2) OF THE ACT ON 17.02.2006,DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.11,07,553/-. DURING THE ASSESSMENT PROCEEDINGS, AO MADE VARIOUS ADDITIONS/ DISALLOWANCES TO THE RETURNED INCOME OF THE ASSESSE E. HE PREFERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA). 2.1. AGAINST THE ORDER OF THE FAA, AO AS WELL AS THE ASS ESSEE FILED APPEAL/CROSS- OBJECTIONS BEFORE THE ITAT. IN THE CROSS-OBJECTION S, ASSESSEE RAISED THE QUESTION ABOUT SERVICE OF NOTICE U/S. 143(2) OF THE ACT. IT WAS SUBMITTED BY THE AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE THAT NOTICE WAS NOT BEEN SERVED ON THE ASSESSEE, THAT THE ADDRESS OF THE ASSESSEE WAS 124, NCPA APAR TMENTS, 12 TH FLOOR, B WING, NARIMAN POINT, MUMBAI 400 021 WHICH WAS DULY MENTIO NED IN THE RETURN OF INCOME FOR THE RELEVANT A.Y. 2003-04, THAT AO HAD ISSUED N OTICE U/S. 143(2) OF THE ACT HAD HIS OLD ADDRESS I.E., 21 WEST VIEW, FIRST PASTA LAN E, COLABA, MUMBAI, THAT THERE WAS NO SERVICE OF NOTICE ON THE ASSESS, THAT ASSESSMENT MA DE BY THE AO IN ABSENCE OF PROPER SERVICE OF NOTICE WAS LEGALLY INVALID. TRIBUNAL VI DE ITS ORDER DTD.02.02.2009 SET-ASIDE THE ORDER OF THE FAA AND RESTORED THE MATTER TO THE FILE OF THE AO FOR PASSING FRESH ORDER AFTER CONSIDERING THE OBJECTIONS RAISED BY TH E ASSESSEE IN RELATION TO SERVICE OF NOTICE AND AFTER ALLOWING OPPORTUNITY OF HEARING TO THE ASSESSEE. THE APPEAL FILED BY THE REVENUE WAS DEALT BY THE TRIBUNAL AS UNDER: AS WE HAVE SET ASIDE THE ORDER OF THE CIT(A) AND R ESTORED THE ASSESSMENT BACK TO ASSESSING OFFICER, THE GROUND RAISED BY THE REVENUE IN DEPART MENTAL APPEAL CANNOT SURVIVE. THE DEPARTMENTAL APPEAL THEREFORE DISMISSED AS HAVING B ECOME INFRUCTUOUS. 2.2. ASSESSEE FILED A MISCELLANEOUS APPLICATION U/S.254( 2) OF THE ACT, BEFORE THE TRIBUNAL IN RESPECT OF THE ORDER DT. 02-02-2009. HE PLEADED THAT PREJUDICE HAD BEEN CAUSED TO THE INTEREST OF THE ASSESSEE, AS ENTIRE O RDER WAS SET ASIDE THE TRIBUNAL, THAT FAA HAD DECIDED THE MATTER IN FAVOUR OF THE ASSESSE E ON MERITS. CONSIDERING THE ASSESSEES SUBMISSIONS, TRIBUNAL MODIFIED ITS ORDER DTD. 02-02-2009 AND DIRECTED THE AO THAT ONLY THE JURISDICTIONAL ISSUE ON THE GROUND OF NON-SERVICE OF NOTICE SHOULD BE DECIDED BY THE AO. DEPARTMENTAL APPEAL WHICH WAS D ECIDED ON MERITS, BY THE FAA ON MERITS, WAS RE-CALLED BY THE TRIBUNAL. 2.3. IN PURSUANCE OF TRIBUNALS ORDER, AO PASSED FRESH O RDER ON 31-12-2009 U/S. 143(3) R.W.S. 254 OF THE ACT DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS. 4.95 LAKHS. IN THE FRESH ASSESSMENT PROCEEDINGS, ASSESS EE RAISED OBJECTION ABOUT SERVICE OF NOTICE U/S.143(2)OF THE ACT. ASSESSEE REFERRED TO THE ORDER DECIDED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE A.Y. 2004-05,WHERE THE SAME ISSUE WAS DECIDED IN FAOVUR OF THE ASSESSEE. ITA NO. 5854/MUM/2006 ITA NO. 5028/MUM/2008 4 2.4. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, AO HELD THAT NOTICE U/S. 143(2) GENERATED BY THE COMPUTER ON THE BASIS OF PAN OF TH E ASSESSEE, THAT NOTICE SENT BY SPEED POST WAS RECEIVED BY ONE MADHURI, THAT ASSE SSEES REPRESENTATIVE HAD ATTENDED FROM TIME TO TIME ALONG WITH THE ASSESSEE AND HAD FILED DETAILS CALLED FOR, THAT DURING THE COURSE OF ASSESSMENT PROCEEDING ISSUE RE GARDING SERVICE OF NOTICE WAS NOT RAISED BY THE ASSESSEE BEFORE THE AO OR THE FAA, TH AT IMPLIEDLY ASSESSEE HAD RECEIVED THE STATUTORY NOTICE IN TIME. FINALLY, HE HELD THA T ASSESSMENT PROCEEDINGS WERE VALID AND THE ASSESSMENT WAS RIGHTLY COMPLETED U/S. 143(3 ) OF THE ACT. 3. ASSESSEE AGAIN PREFERRED AN APPEAL BEFORE THE FAA. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, FRESH ASSESSMENT ORDER AND THE ORDER OF THE TRIBUNAL DTD.20-09-2009 FOR THE AY 2004-05 (ITA NO. 6045/MUM /07) FAA HELD THAT THERE SHOULD BE VALID SERVICE OF NOTICE ON ASSESSEE, THAT THE PERSON ON WHOM SERVICE WAS AFFECTED MUST HAVE A VALID AUTHORIZATION GIVEN TO H IM IN WRITING, THAT TO RECEIVE SUCH A NOTICE MERE IMPLIED AUTHORITY WOULD NOT BE ENOUGH, THAT IN THE CASE UNDER CONSIDERATION EVEN IMPLIED AUTHORITY WAS NOT EXISTI NG, THAT AO HAD NOT DISCHARGED HIS ONUS OF PROVING THE VALIDITY OF SERVICE OF NOTICE U /S.143(2) OF THE ACT, THAT ASSESSEE HAS FURNISHED HIS NEW ADDRESS IN MARCH 2000 ITSELF, THAT TRIBUNAL, IN THE ORDER FOR THE AY 2004-05 HAD OBSERVED THAT NO MATERIAL WAS PLACED ON RECORD TO SHOW MR. MANOJ ROY WAS SPECIFICALLY AUTHORISED TO RECEIVE THE NOTI CE, THAT APPELLANT HAD DENIED THAT MADHURI WAS AUTHORISED PERSON TO RECEIVE THE NOTICE ON HIS BEHALF, THAT AO HAS ALSO NOT STATED IN THE ORDER THAT SHE WAS THE AUTHORISED PERSON. REFERRING TO JUDGMENT OF SHRI SALMAN KHAN, DELIVERED BY THE HONBLE JURISDIC TIONAL HIGH COURT, FAA HELD THAT NOTICE WAS NOT VALIDLY SERVED UPON THE ASSESSEE FOR THE A.Y. 2003-04.APPEAL FILED BY THE ASSESSEE WAS ALLOWED BY THE FAA. 3.1. BEFORE US, DEPARTMENTAL REPRESENTATIVE (DR) SUBMITT ED THAT THERE WAS PROPER SERVICE OF NOTICE ON THE ASSESSEE, ASSESSEE HAD NO T RAISED THE ISSUE OF NOTICE OF SERVICE BEFORE THE AO DURING THE FIRST ROUND OF ASSESSMENT PROCEEDINGS. AUTHORISED REPRESENTATIVE (AR) SUBMITTED THAT THERE WAS NO VAL ID SERVICE OF NOTICE IN THE CASE UNDER CONSIDERATION, THAT ON THE SIMILAR FACTS MATT ER WAS DECIDED IN FAVOUR OF THE ASSESSEE FOR THE AY 2004-05. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON FILE. UN- DISPUTED FACTS OF THE CASE UNDER CONSIDERATION CAN BE SUMMARISED AS UNDER: I) ASSESSEE WAS FILING HIS RETURNS OF INCOME FROM H IS COLABA ADDRESS IN EARLIER YEARS. II) FROM 2001,HE STARTED FILING HIS RETURNS FROM NE W ADDRESS I.E., NARIMAN POINT. III)NOTICES/ASSESSMENT ORDERS WERE ISSUED BY THE DE PARTMENT AT THE NEW ADDRESS, NARIMAN POINT. IV) NOTICE U/S. 143(2) OF THE ACT WAS GENERATED BY THE COMPUTER AND IT WAS DISPATCHED AT THE OLD ADDRESS OF THE ASSESSEE. V)THE NOTICE WAS RECEIVED BY ONE SHRI MANOJ ROY. VI)ASSESSEE RAISED THE ISSUE OF VALIDITY OF SERVICE OF NOTICE BEFORE THE FAA. VII) FOR THE AY.2004-05,MATTER WAS DECIDED IN FAOVU R OF THE ASSESSEE BY THE TRIBUNAL IN SIMILAR CIRCUMSTANCES. 5. CONSIDERING THE ABOVE FACTS, IN OUR HUMBLE OPINION, THERE WAS NO VALID SERVICE OF THE NOTICE ISSUED U/S.143(2) OF THE ACT FOR THE AY. UNDER CONSIDERATION. IN THESE ITA NO. 5854/MUM/2006 ITA NO. 5028/MUM/2008 5 CIRCUMSTANCES, UPHOLDING THE ORDER OF THE FAA DT. 2 5-08-2006,WE REJECT THE APPEAL FILED BY THE AO AND ALLOW THE CROSS-OBJECTIONS FILE D BY THE APPELLANT-ASSESSEE. DEPARTMENTAL REPRESENTATIVE (DR) HAS NOT BROUGHT AN YTHING ON RECORD THAT ORDER OF THE FAA FOR THE OTHER YEARS, WHERE SIMILAR ISSUE WA S INVOLVED, WAS REVERSED BY THE TRIBUNAL. IN THESE CIRCUMSTANCES, WE ARE OF THE OPINION THAT APPEAL FILED BY THE AO HAS TO BE DISMISSED. ITA NO. 5028 A.Y. 2005-06 6. THE ASSESSEE HAD FILED HIS RETURN OF INCOME ON 27-1 0-2005 FOR RS. 1,66,660/- AND THE ASSESSMENT WAS FINALISED U/S. 143(3)OF THE ACT ON 27-12-2007 FOR RS. 14.26 LAKHS. THE RETURN WAS SELECTED UNDER COMPULSORY SCRUTINY A S PER BOARDS GUIDELINES FOR SELECTION OF CASES SCRUTINY DURING THE FINANCIAL YE AR 2006-07 [PARA 2(E)(II)]. 6.1. DURING THE ASSESSMENT PROCEEDINGS, AO MADE VARIOUS ADDITIONS/DIS-ALLOWANCES TO THE INCOME OF THE ASSESSEE. ASSESSEE FILED AN APPE AL BEFORE THE FAA. THE FIRST GROUND RAISED BY THE ASSESSEE BEFORE THE FAA WAS AB OUT NON-SERVICE OF NOTICE ISSUED U/S. 143(2) OF THE ACT WITHIN THE PRESCRIBED/STATUT ORY TIME LIMIT. ASSESSEE SUBMITTED THAT THE ASSESSMENT ORDER PASSED WAS ILLEGAL, BAD I N LAW AND WITHOUT JURISDICTION AND HENCE LIABLE TO BE QUASHED. THE ISSUE WAS DISCUSSE D BY THE AO IN THE ASSESSMENT ORDER AT PARA NO.2 -HE HELD THAT THERE WAS NO SUBST ANCE IN THE OBJECTION RAISED BY THE AO, THAT THE NOTICE U/S. 143(2) DTD.26-10-2006 WAS SENT TO THE ASSESSEE BY SPEED POST, THAT NOTICE WAS ACKNOWLEDGED ON 31.10.2006,T HAT A FURTHER NOTICE U/S.143(2) DTD. 26-10-2006 WAS ALSO SERVED BY AFFIXTURE ON 31. 10.2006 BY THE WARD INSPECTOR, THAT A COPY OF THE AFFIXTURE REPORT WAS GIVEN TO TH E APPELLANT ALSO, THAT THE NOTICE U/S. 143(2) WAS VALIDLY SERVED ON THE APPELLANT. 6.2. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, ASSESSMENT ORDER, VARIOUS JUDGMENTS RELIED UPON BY THE ASSESSEE, FAA HELD THA T IN THE AFFIXTURE REPORT THE INSPECTOR HAD NEITHER MENTIONED THE TIME OF REACHIN G THE APPELLANTS PREMISES NOR THE TIME OF HIS LEAVING THE PREMISES, THAT THE INSPECTO R HAD NO WHERE MENTIONED THAT THERE WAS NO POSSIBILITY OF SERVICE OF SUCH NOTICE IN NOR MAL COURSE OR AFTER SERIES OF ATTEMPT THE ASSESSEE WAS NOT FOUND/HE REFUSED TO ACCEPT THE NOTICE, THAT AO GOT APPROVAL FROM THE OFFICE OF THE CIT TO SELECT THE CASE UNDER SCRU TINY ONLY AFTER 27.10.2006, THAT NOTICE U/S.143(2) COULD NOT HAVE BEEN ISSUED AND ON 26.10.2006, THAT NO NOTICE U/S. 143(2) WAS ACTUALLY SERVED WITHIN THE PRESCRIBED LI MIT, THAT TO OVERCOME THIS ANOTHER COPY OF NOTICE WAS SERVED BY AFFIXTURE, THAT AMENDM ENT OF SECTION 292 (B)(B) WERE NOT APPLICABLE IN THE CASE UNDER CONSIDERATION AS SAME WAS APPLICABLE FROM 01-04-2008. FINALLY, FOLLOWING THE DECISION OF THE F BENCH OF DELHI HIGH COURT IN THE CASE OF VISHNU AND CO.P.LTD. (ITA NO. 4921/DEL/2004 DTD.11. 05.2007) HE HELD THAT ASSESSMENT WAS INVALID BECAUSE OF INVALID SERVICE O F NOTICE U/S. 143(2) OF THE ACT. SINCE THE ASSESSMENT WAS HELD TO BE INVALID, HE DID NOT DEAL WITH THE MERITS OF THE ADDITIONS MADE IN THE ASSESSMENT ORDER. ALL THE RE MAINING GROUNDS WERE NOT CONSIDERED ON THIS TECHNICAL POINT AND SAME WERE TR EATED AS DISMISSED FOR STATISTICAL PURPOSES. HOWEVER, HE DEALT THEM ON MERITS ALSO AN D DISMISSED THE SAME. 7. BEFORE US, DR AS WELL AS THE AR MADE THE SAME SUBMISSIONS THAT WERE MADE FOR THE AY.2003-04. ITA NO. 5854/MUM/2006 ITA NO. 5028/MUM/2008 6 FROM THE FACTS AVAILABLE, IT IS CLEAR THAT NOTICE U /S. 143(2) OF THE ACT WAS NOT ISSUED TO/ SERVED UPON THE ASSESSEE IN TIME, FOR THE AY UNDER CONSIDERATION. HENCE, ASSESSMENT ORDER PASSED IN PURSUANCE OF THE SAID NOTICE IS HEL D TO BE AGAINST THE PROVISIONS OF LAW. UPHOLDING THE ORDER OF THE FAA, WE REJECT THE APPEAL FILED BY THE AO. APPEAL FILED BY THE AO, FOR THE AY. 2005-06, STANDS DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD OCTOBER, 2012. SD/- ( D. MANMOHAN ) VICE PRESIDENT SD/- (RAJENDRA) ACCOUNTANT MEMBER MUMBAI, DATED : 3 RD OCTOBER, 2012 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS), MUMBAI 4. COMMISSIONER OF INCOME TAX, , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH B MUMBAI 6. GUARD FILE //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI ROSHANI