SHRI VISHNU KUMAR BHARGAVA, Jaipur V. ITO, Jaipur

ITA 629/JPR/2011

• Counselvise Citation: 62923114 RSA 2011
• Duration Of Justice: 3 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 15-06-2011

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA- @ ITA NO. 629/JP/2011 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2006-07 VISHNU KUMAR BHARGAVA, D-16, MEERA MARG, BANI PARK, JAIPUR. CUKE VS. THE I.T.O., WARD 7(3), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: ABPPB 2688 B VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI T.C. JAIN, (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI AJAY MALIK (ADDL.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 27/11/2014 ?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 13/02/2015 VKNS'K @ ORDER PER: R.P. TOLANI, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 31/03/2011 BY THE LEARNED CIT(A)-III, JAIPUR FOR A. Y. 2006-07. RESPECTIVE GROUNDS OF APPEAL ARE AS UNDER: 1. THE LEARNED CIT(A) HAS GROSSLY ERRED IN FACTS A S WELL AS IN LAW IN CONFIRMING THE ORDER PASSED BY THE A.O. U/S 1 44 ITA 629/JP/2011_ VISHNU KR. BHARGAVA VS. ITO 2 IGNORING THE FACTS THAT THE STATUTORY NOTICE U/S 14 3(2) WAS NOT SERVED ON THE ASSESSEE WITHIN THE TIME LIMIT PRE SCRIBED UNDER THAT SECTION. 2. THE LEARNED CIT(A) HAS GROSSLY ERRED I FACT AS WE LL AS IN LAW IN CONFIRMING THE ORDER PASSED BY THE A.O. U/S 1 44 WITHOUT SERVING NOTICE U/S 143(2) WITHIN THE TIME LIM IT PRESCRIBED UNDER THE LAW. 3. THE LEARNED CIT(A) HAS GROSSLY ERRED IN FACT AS WE LL AS IN LAW IN CONFIRMING THAT THE NOTICE U/S 143(2) HAS BEE N SERVED WITHIN THE TIME PRESCRIBED UNDER THAT SECTION WITHOUT ADDUCING EVIDENCES OF SERVICE OF NOTICE AS A LLEGED. 4. THE LEARNED CIT(A) HAS ALSO GROSSLY ERRED IN CONFI RMING ADDITION OF RS. 15,25,000.00 ON ACCOUNT OF ALLEGED UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THE LEARNED CIT(A) HAS ALSO GROSSLY ERRED IN CONFI RMING ADDITION OF RS. 65,80,000.00 ON ACCOUNT OF UNEXPLAI NED BANK DEPOSIT THROUGH CHEQUES IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THE APPELLANT PRAYS LEAVE TO ADD TO, ALTER AND/OR AMEND THE AFORESAID GROUNDS OF APPEAL AT OR BEFORE THE TI ME OF HEARING OF APPEAL. 2 BRIEF FACTS AS RECORDED BY THE ASSESSING OFFICER ARE AS UNDER:- RETURN OF INCOME WAS FILED ON 26/07/2006 DECLARING INCOME OF RS. 1,39,837/-. THE CASE WAS TRANSFERRED TO THIS OFFI CE BY ITO WARD 3(2) JAIPUR VIDE HIS LETTER NO. ITO/W-3(2)/JPR/ 2007- 08/832 DATED 19/07/2007. AS PER HIS LETTER SELECTED FOR SCRUTINY ITA 629/JP/2011_ VISHNU KR. BHARGAVA VS. ITO 3 BY CASS. ACCORDING, NOTICE U/S 143(2) DATED 24/07/2 007 WAS ISSUED BY THE THEN ITO (THIS OFFICE) FIXING THE CAS E FOR 31/07/2007 AND WAS SENT VIDE NO. 1573 DATED 24/07/20 07 THROUGH REGISTERED POST. (POSTAL RECEIPT NO. 589 DA TED 24/07/2007). ANOTHER NOTICE U/S 143(2) WAS ISSUED BY ME ON 21/05/2008 FIXING THE CASE ON 28/05/2008. ON 28/05/ 2008 ON BEHALF OF ASSESSEE, SHRI ASHWANI CHATURVEDI ATTENDED . HE WAS GIVEN DETAILED QUESTIONNAIRE DATED 22/05/2008 AND T HE CASE WAS ADJOURNED TO 27/06/2008. ON 27/06/2008, NO COMPLIAN CE WAS MADE, LETTER DATED 01/07/2008 WAS ISSUED FIXING THE CASE FOR 09/07/2008. ON 09/07/2008, ASSESSEE FILED LETTER ST ATING THAT THE NOTICE U/S 143(2) DATED 24/07/2007 WAS SERVED ON 03/ 08/2007 (WITHOUT SUBMITTING ANY EVIDENCE) AND THE NOTICE WAS SERVED BEYOND THE TIME LIMIT AND, THEREFORE, IT WAS BAD IN LAW. HE REQUESTED TO DROP THE PROCEEDINGS. 2.1 THE ASSESSING OFFICER, HOWEVER, HELD THAT THE SER VICE OF NOTICE U/S 143(2) WAS PROPER; ASSESSEE, EXCEPT OBJECTING TO SERVICE OF NOTICE DID NOT EFFECTIVELY COOPERATE IN THE ASSESSMENT, TH E SAME WAS FRAMED EX PARTE U/S 144 BY FOLLOWING OBSERVATIONS: SECTION 27 OF THE GENERAL CLAUSES ACT PROVIDES THA T NOTICE IS TO BE TREATED AS SERVED LEGALLY IF TRANSMISSION IS THR OUGH REGISTERED POST (CIT) VS. SHANKAR LAL VED PRAKASH (2007) 212 ITR (DELHI). THEREFORE, YOUR CLAIM THAT NOTICES U/S 143(2) WAS NOT SERVED WITHIN TIME IS NOT ACCEPTABLE. YOU ARE REQUESTED TO MAKE ITA 629/JP/2011_ VISHNU KR. BHARGAVA VS. ITO 4 COMPLIANCE TO AVOID EX PARTE ASSESSMENT. ON 12/09/2 009, YOU DID NOT MAKE ANY COMPLIANCE. FROM THE ABOVE FACTS, IT IS SEEN THAT DESPITE GIVI NG SEVERAL OPPORTUNITIES AFTER PROPER SERVICE OF NOTICE U/S 14 3(2) DATED 24/07/2007, YOU HAVE NOT FURNISHED DETAILS AS PER Q UESTIONNAIRE DATED 22/05/2008. IN THE CIRCUMSTANCES, I AM COMPEL LED TO COMPLETE THE ASSESSMENT U/S 144 OF THE I.T. ACT. HOWE VER, BEFORE DOING SO, YOU ARE HEREBY REQUIRED TO SHOW CAU SE BY 06/10/2008 WHY ASSESSMENT U/S 144 BE NOT COMPLETED T O THE BEST OF MY JUDGMENT INTER ALIA ASSESSING FOLLOWING I NCOME: 2.2 THEREAFTER, LEARNED ASSESSING OFFICER INFORMED T HE ASSESSEE ABOUT HIS PROPOSED EX PARTE ASSESSMENT U/S 144 AND SHOW CAUSE WHY THE ITEMS AND AMOUNTS LISTED THEREIN SHOULD NOT BE ADDED TO ASSESSEES INCOME, THESE ITEMS ARE MENTIONED IN DETAIL IN THE ASSESSMENT ORDER. SINCE THE ASSESSEE DID NOT PROPERLY REPLY THE SHOW C AUSE NOTICE, THE ASSESSMENT WAS CONCLUDED U/S 144 BY MAKING FOLLOWING ADDITIONS. INCOME FROM SALARY AS SHOWN RS. 1,38,000/- PENSION AS SHOWN RS. 14,940/- ROYALTY AS ABOVE RS. 1,00,000/- INTEREST AS SHOWN RS. 5,091/- ADDITION U/S 69 ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN BANK AS ABOVE RS. 15,25,000/- ADDITION U/S 69 ON ACCOUNT OF UNEXPLAINED BANK DEPOSIT THROUGH ITA 629/JP/2011_ VISHNU KR. BHARGAVA VS. ITO 5 CHEQUES AS ABOVE RS. 65,80,000/- GROSS TOTAL INCOME RS. 83,63,001/- LESS: DEDUCTION U/S 80C AS ABOVE RS. 60,000/- TOTAL INCOME RS. 83,03,001/- R/S RS. 83,03,000/- 3. AGGRIEVED, THE ASSESSEE PREFERRED FIRST APPEAL B EFORE THE LEARNED CIT(A), WHO UPHELD THE SERVICE OF NOTICE U/S 143(2) OF THE INCOME TAX ACT, 1961 ON THE ASSESSEE AND UPHELD THE ACTION OF FRAMING THE ASSESSMENT U/S 144 OF THE ACT BY FOLLOWING OBSERVATI ONS:- 02-3 ESAUS NKSUKSA IKFVZ;KSA DS RDKSZ DK VOYKSDU FD ;K ,OA IK;K FD FU-V- US FNUKAD 24-07-2007 DKS /KKJK 1432 DS RGR UKSFVL TFJ, EKAD 1573 TKJH DJ MKD FOHKKX }KJK VIHYKFKHZ D SIRS IJ HKSTKA FU-V- DS FJDKMZ ESA BL CKR DS LK{; EKSTWN GS FD MDR UKSFVL FNUKAD 24-07 -2007 DKS IATHD`R MKD }KJK HKSTK X;KA BLFY, UKSFVL HKSTS TKUS DH FRFFK IJ DKSBZ FOOKN UGHA GSAA VC IZU UKSFVL RKEHY DK GSAA VIHYKFKHZ DS IKL ,SLK DKSBZ LCWR UGHA GSA] FTLLS ;G FL) GKS LDS FD M DR UKSFVL FNUKAD 03-06-2007 DKS RKEHY GQVK A ;GKA RD FDL LACA/K ES A VKO;D LK{; IZLRQR DJUS DK VOLJ VIHY DH LQUOKBZ DS NKSJKU FN;K X;KA T;IQJ 'KGJ ESA LKEKU;R;K MKD FOHKKX NWLJS ;K RHLJS FNU MK D LQIQNZ DJ NSRK GSAA PWAFD MDR UKSFVL FNUKAD 24-07-2007 DKS TKJH FD ;K X;K] RFKK FNUKAD 24-07-2007 DKS GH MKD FOHKKX DKS FN;K X;K] B LFY, BL FGLKC LS LKEKU;R;K MDR UKSFVL VF/KDRE 26-07-2007 ;K 27-07 -2007 RD VIHYKFKHZ DKS FEY TKUK PKFG,A BLDS VFRFJDR ;G HKH , D RF; GS FD VIHYKFKHZ US FNUKAD 24-07-2007 DKS TKJH FD, X, UKSF VL DH IKYUK ESA ITA 629/JP/2011_ VISHNU KR. BHARGAVA VS. ITO 6 DKSBZ TOKC UGHA FN;KA BLDS VFRFJDR VIHYKFKHZ DK EKE YK NQCKJK LQUOKBZ GSRQ FY, TKUS IJ FNUKAD 28-05-2008 DKS VIHY KFKHZ DH VKSJ LS JH VFOUH PRQOSZNH MIFLFKR GQ,] RC HKH UKSFVL DH OS/KK FUDRK IJ DKSBZ VKIFRR NTZ UGHA DH XBZ CFYD FU-V- }KJK CSAD ESA TE KVKSA DS LACA/K ESA IWNUS DS CKN BL IZDKJ DH VKIFRR NTZ DH XBZ GSA] TKS FUFPR :ILS CKN DK FOPKJ GSA PWAFD VIHYKFKHZ FNUKAD 03-08-2007 DKS GH UKSFVL VIHYKFKHZ IJ RKFEY GQVK] BL CKJS ESA DKSBZ LK{; IZL RQR UGHA DJ LDK RFKK FU-V- }KJK FNUKAD 24-07-2007 DKS UKSFVL HKST F N, X;K] BLDK LCWR FJDKMZ IJ EKSTWN GS] ,SLH FLFKFR ESA VIHYKFKHZ DK RDZ LOHDKJ DJUS ;KSX; UGHA GSAA VR% VIHY DS BU EQN~NKSA DKS FUJLR F D;K TKRK GS RFKK FU- V- }KJK TKJH FD, X, UKSFVL DKS FOF/KLEER EKUK TKRK GS RFKK /KKJK 144 DS RGR VKNSK MFPR :IESA IKFJR FD;K X;K GSA] BL DH IQF'V DH TKRH GSAA 3.1 ON MERITS, THE ASSESSEE ALSO FILED APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE. THE LEARNED CIT(A) DECLINED TO ADMIT THE ADDITIONAL EVIDENCE BY FOLLOWING OBSERVATIONS:- FO-V- US VIHY DH LQUOKBZ DS NKSJKU CSAD [KKRS DH IZ FR] MDR O;FDR;KSA LS FNUKAD 19-10-1993 DKS FD, X, BDJKJUKESA DH IZFR ISK DH RFKK VUQJKS/K FD;K FD MDR NLRKOSTKSA DKS VK;DJ FU;E 1962 DS FU;E 46, DS RGR VFRFJDR LK{; DS :IESA LOHDKJ FD, TK,A VIHYKF KHZ }KJK MDR NLRKOST FU-V- DS LE{K IZLRQR UGHA FD, X, FKS] B LFY, FU-V- DH FVII.KH GSRQ I= EKAD 462 FNUKAD 10-09-2010 TKJH FD ;K X;KA FTLDH IKYUK ESA FU-V- US VIUH FJIKSVZ EKAD 4418 FNUKAD 2 2-02-2011 ISK DH ,OA CRK;K FD LAOH{KK DK;ZOKGH DS NKSJKU FU/KKZFJRH DKS CKJ&CKJ VOLJ ITA 629/JP/2011_ VISHNU KR. BHARGAVA VS. ITO 7 IZNKU FD;K X;K FKK] IJURQ FU/KKZFJRH US TEKDRKZVKSA DS LACA/K ESA DKSBZ FOXR IZLRQR UGHA DH FKH] BLFY, VIHYH; LRJ IJ ISK F D, X, VFRFJDR LK{;KSA DKS LOHDKJ UGHA FD;K TKUK PKFG,A FU -V- US VKXS CRK;K FD FQJ HKH FCUK IWOKZXZGKSA DS FU/KKZFJRH DKS VIHYH; LRJ IJ ISK FD, X, NLRKOSTKSA DS LACA/K ESA LI'VHDJ.K ISK DJUS GSRQ FNUKAD 10-01- 2011 DKS I= TKJH DJ FNUKAD 24-01-2011 DH LQUOKBZ FU FPR DJ VOLJ IZNKU FD;K X;K] FTLDH IKYUK ESA VIHYKFKHZ US L FKXU PKGK] TKS FNUKAD 01-02-2011 DS FY, FD;K X;KA IJURQ FNUKAD 01- 02-2011 DKS OGH LI'VHDJ.K TKS VIHYH; LRJ IJ ISK FD;K X;K FKK] IQU% ISK FD;K X;KA FU/KKZFJRH LS TEKDRKZVKSA DKS MIFLFKR DJUS RFKK NLR KOSTKSA DS LACA/K ESA VKO;D LGK;D LK{; IZLRQR DJUS GSRQ DGK X;KA IJURQ F U/KKZFJRH US U RKS TEKDRKZVKSA DKS MIFLFKR FD;K ,OA U GH NLRKOSTKS A DS LACA/K ESA VKO;D LGK;D LK{; IZLRQR FD,A BLFY, VIHYH; LRJ IJ I SK FD, X, VFRFJDR NLRKOSTKSA DKS LOHDKJ UGHA FD;K TKUK PKF G,A 03-3 ESAUS NKSUKSA IKFVZ;KSA DS RDKSZ DK VOYKSDU FD ;K ,OA IK;K FD FU-V- DS RDZ MFPR GSAA FU-V- US VIHYKFKHZ NDKS FU/KKZJ.K DK;ZOKGH DS NKSJKU CKJ&CKJ VOLJ IZNKU FD;K] IJURQ VIHYKFKHZ }KJK BL LA CA/K ESA DKSBZ NLRKOST FU-V- DS LE{K IZLRQR UGHA FD, X;SA BLDS VFR FJDR VIHYH; LRJ IJ FU-V- LS FJIKSVZ PKGUS IJ FU-V- }KJK IQU% VI HYKFKHZ DKS VOLJ IZNKU FD, X,] IJURQ VIHYKFKHZ US OS GH RF; TKS VIHY H; LRJ IJ LI'V FD, FKS] FU-V- DS LE{K IZDV FD,] IJURQ FU-V- DS LE{ K MDR NLRKOSTKSA DS LEFKZU ESA DKSBZ LGK;D LK{; IZLRQR UGHA FD, ,OA U GH TEKDRKZVKSA DKS MIFLFKR FD;KA BL IZDKJ VIHYKFKHZ DKS FU-V- DS L E{K VIUS DFKU DKS FL) DJUS DK CKJ&CKJ VOLJ IZNKU FD;K TKRK JGK GS A] IJURQ ITA 629/JP/2011_ VISHNU KR. BHARGAVA VS. ITO 8 VIHYKFKHZ VIUS DFKU DKS FL) DJ IKUS ESA VLQY JGK GS AA VR% VIHYH; LRJ IJ VIHYKFKHZ }KJK FN, X, VFRFJDR LK{;KSA DKS VK;DJ FU;E 1962 DS FU;E 46, DS RGR LOHDKJ FD;K TKUK LAHKO UGHA GSAA VR% VIHYKFKHZ }KJK FU;E 46, DS RGR ISK FD, X, NLRK OSTKSA DKS VLOHDKJ FD;K TKRK GS RFKK VIHYKFKHZ DH VIHY BL EQN~ NS IJ FUJLR DH TKRH GSAA ONE OF THE ASSESSEES GROUND IN RESPECT OF SECTION 80C OF THE ACT WAS ALLOWED, HOWEVER, ALL OTHER GROUNDS WERE DISMISSED BY THE LEARNED CIT(A). THUS, THE FIRST APPEAL WAS PARTLY ALLOWED. 4. AGGRIEVED, ASSESSEE IS IN FURTHER APPEAL BEFORE US. 5. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDS THA T FOR VALID ASSESSMENT U/S 143(2) OF THE ACT, IT IS MANDATORY O N THE PART OF THE DEPARTMENT TO DEMONSTRATE THAT NOTICE U/S 143(2) OF THE ACT WAS VALIDLY SERVED IN STATUTORY TIME ON THE ASSESSEE. THE OBSERV ATIONS OF ASSESSING OFFICER MERELY INDICATE THAT A NOTICE WITHIN TIME WA S ISSUED ON THE ASSESSEE. IT HAS BEEN HELD BY VARIOUS COURTS THAT T HE ISSUANCE OF NOTICE DOES NOT AMOUNT TO SERVICE OF THE NOTICE. THUS, IN A SSESSEES CASE, THE MANDATORY CONDITION OF SERVICE OF NOTICE U/S 143(2) OF THE ACT IN TIME ON THE ASSESSEE REMAINS UNCOMPLIED WITH. THEREFORE, T HE ASSESSMENT IN QUESTION WAS AB-INITIO VOID FOR WANT OF JURISDICTION. RELIANCE IS PLACED ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE O F ACIT VS. HOTEL ITA 629/JP/2011_ VISHNU KR. BHARGAVA VS. ITO 9 BLUE MOON 321 ITR 362 WHICH MANDATES A PROPER SERVIC E OF NOTICE U/S 143(2) FOR A PROPER ASSESSMENT. IT IS PLEADED THAT THOUGH HOTEL BLUE MOONS CASE REFERS TO SECTION 158BC OF THE ACT, HOWE VER, ALL OTHER PROVISIONS OF I T ACT INCLUDING SECTION 143(2) OF TH E ACT ARE SIMILAR IN THE CASE OF ASSESSMENTS U/SS 143, 144 AND 158BC OF THE ACT. SINCE THE LOWER AUTHORITIES HAVE FAILED TO DEMONSTRATE THAT TH E NOTICE U/S 143(2) WAS ACTUALLY SERVED ON THE ASSESSEE, THE ASSESSMENT IS AB-INITIO VOID. THEREFORE, THE SAME SHOULD BE QUASHED. ON MERITS REF ERENCE IS MADE TO PAPER BOOK I.E. ADDITIONAL EVIDENCE FILED BEFORE LD . CIT(A), IT IS PLEADED THAT ON MERITS ALSO THE ADDITIONS ARE UNWARRANTED. 6. LEARNED D.R. ON THE OTHER HAND, VEHEMENTLY OPPO SES THE REFERENCE TO ADDITIONAL EVIDENCE WHICH IS DECLINED B Y LD. CIT(A) AGAINST WHICH ASSESSEE IS NOT IN APPEAL. IT IS CONTENDED THA T THE LEARNED ASSESSING OFFICER AND LEARNED CIT(A) BOTH HAVE DEMO NSTRABLY PROVED THAT THE NOTICE U/S 143(2) OF THE ACT FOR THIS ASSE SSMENT WAS VALIDLY SERVED ON THE ASSESSEE, INASMUCH AS THE NOTICE WAS S ENT ON 24/7/2007 BY REGISTERED POST, WHICH IS WITHIN TIME. THE ASSESS EE HAS NOT GIVEN ANY EVIDENCE TO PROVE THAT THE SAID NOTICE WAS NOT RECEI VED BY HIM. ALL THE TIME, THE ASSESSEE TOOK A VAGUE PLEA THAT NOTICE U/ S 143(2) OF THE ACT ITA 629/JP/2011_ VISHNU KR. BHARGAVA VS. ITO 10 IS NOT SERVED ON HIM, THEREFORE, ASSESSMENT PROCEED INGS SHOULD BE DROPPED. 6.1 REFERENCE IS MADE TO THE PROVISIONS OF SECTION 27 OF THE GENERAL CLAUSES ACT THAT TRANSMISSION OF NOTICE BY REGISTER ED POST IS A VALID SERVICE AS THE POSTAL AUTHORITY ACT AS AN AGENT OF THE ASSESSEE. THE ASSESSING OFFICER COMMUNICATED TO THE ASSESSEE ABOU T HIS RELIANCE ON THE CASE OF CIT VS. SHANKAR LAL VED PRAKASH (SUPRA), WHICH UPHOLDS THIS VIEW. THE ASSESSEE NEVER CARED TO CONTROVERT THE \IS PROPOSITION OF LD. AO AS LAID DOWN BY THE HONBLE DELHI HIGH COURT. THE ASSESSEES RELIANCE ON HOTEL BLUE MOONS CASE IS OF NO AVAIL I NASMUCH AS IT SUPPORTS THE CASE OF REVENUE AS IT REFERS ONLY TO ISSUANCE O F NOTICE U/S 143(2) OF THE ACT IN TIME BY FOLLOWING OBSERVATIONS: SECTION 158BC PROVIDES FOR ENQUIRY AND ASSESSMENT. AFTER THE RETURN IS FILED, CLAUSE (B) OF SECTION 158BC PROVID ES THAT THE ASSESSING OFFICER SHALL PROCEED TO DETERMINE THE UN DISCLOSED INCOME OF THE BLOCK PERIOD IN THE MANNER LAID DOWN I N SECTION 158BB AND THE PROVISIONS OF SECTION 142, SUB-SECTI ONS (2) AND (3) OF SECTION 143, SECTION 144 AND SECTION 145 SHA LL, SO FAR AS MAY BE, APPLY. THIS INDICATES THAT THIS CLAUSE ENAB LES THE ASSESSING OFFICER, AFTER THE RETURN IS FILED, TO CO MPLETE THE ASSESSMENT UNDER SECTION 143(2) BY FOLLOWING THE PRO CEDURE LIKE ISSUE OF NOTICE UNDER SECTION 143(2)/142. THIS DOES NOT PROVIDE ITA 629/JP/2011_ VISHNU KR. BHARGAVA VS. ITO 11 ACCEPTING THE RETURN AS PROVIDED UNDER SECTION 143( 1)(A): THE OFFICER HAS TO COMPLETE THE ASSESSMENT UNDER SECTIO N 143(3) ONLY. IF AN ASSESSMENT IS TO BE COMPLETED UNDER SEC TION 143(3) READ WITH SECTION 158BC, NOTICE UNDER SECTION 143(2) SHOULD BE ISSUED WITHIN ONE YEAR FROM THE DATE OF FILING OF TH E BLOCK RETURN. OMISSION ON THE PART OF THE ASSESSING AUTHORITY TO ISSUE NOTICE UNDER SECTION 143(2) CANNOT BE A PROCEDURAL IRREGUL ARITY AND IS NOT CURABLE. THEREFORE, THE REQUIREMENT OF NOTICE UN DER SECTION 143(2) CANNOT BE DISPENSED WITH. DECISIONS OF THE GA UHATI HIGH COURT AND OF THE DELHI HIGH COURT IN CIT V. PAWAN GUP TA (2009) 318 ITR 322 AFFIRMED. IT IS PLEADED THAT THERE IS NO MERIT IN THE GROUNDS AND PLEADINGS OF THE ASSESSEE IN THIS BEHALF. 6.2 ON MERITS, THE LEARNED DR CONTENDS THAT EXCEPT OBJECTING TO NOTICE NO COMPLIANCE WAS MADE BEFORE THE ASSESSING O FFICER WHICH RESULTED IN EX PARTE ASSESSMENT AFTER DUE INTIMATIO N TO ASSESSEE. LD. AO BY PERTINENT OBSERVATIONS PASSED THE IMPUGNED SPEAK ING ORDER MAKING APPROPRIATE ADDITIONS. THUS, AS FAR AS, THE ASSESSEE S EXPLANATION ON MERITS IS CONCERNED, THERE IS NOTHING ON THE RECORD IN THIS BEHALF. 6.3 BEFORE LEARNED CIT(A), THE ASSESSEE FOR THE FIR ST TIME FILED ADDITIONAL EVIDENCE UNDER RULE 46A OF THE INCOME TAX RULES, 1962 (IN SHORT THE RULES), ALONG WITH APPLICATION FOR ADMISSI ON THEREOF. IN EXERCISE OF HIS POWERS U/R 46A LEARNED CIT(A) DECLIN ED TO ACCEPT THE ITA 629/JP/2011_ VISHNU KR. BHARGAVA VS. ITO 12 SAME AFTER HOLDING THAT THE ASSESSEE WAS GIVEN SUFFI CIENT OPPORTUNITY BY ASSESSING OFFICER AND NO CASE HAS BEEN MADE OUT BY THE ASSESSEE THAT HE WAS PREVENTED BY A SUFFICIENT CAUSE IN NOT FILING THE EVIDENCE BEFORE THE ASSESSING OFFICER. THE ASSESSEES APPLICATION FO R ADMISSION OF ADDITIONAL EVIDENCE HAS BEEN DISMISSED BY THE LEARN ED CIT(A) BY ELABORATE OBSERVATIONS AND FINDINGS. THE ASSESSEE HA S NOT RAISED ANY GROUND CHALLENGING THE REFUSAL OF ADMISSION OF ADDI TIONAL EVIDENCE BY THE LEARNED CIT(A) U/R 46A. IN THESE CIRCUMSTANCES, THERE IS NO MATERIAL ON RECORD ON WHICH, NOW THE ASSESSEE IS ATTEMPTING T O RELY ON MERIT OF THE CASE. AS NOTHING WAS FILED BEFORE THE ASSESSING OFFICER, DESPITE FINAL 144 NOTICE THE ASSESSEES CONTENTIONS ON QUANTUM AD DITIONS LACK MERIT IN THIS BEHALF. 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. BOTH THE AUTHORITIES BELOW HAVE GIVEN ELABORATE REASONS TO DEMONSTRATE THAT AS PER RECORD, THE NOTICE U/S 143(2) WAS DULY ISSUED ON THE ASSESSEE WHI CH IS DEEMED TO BE SERVED ON THE ASSESSEE AS HELD BY THE DECISION O F HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. SHANKAR LAL VED PRAKASH (SUPRA). THE ASSESSEE WAS NON-COOPERATIVE IN ASSESSMENT PROCEEDIN GS TAKING ONLY SPECIOUS PLEA THAT NO VALID NOTICE U/S 143(2) OF TH E ACT WAS ITA 629/JP/2011_ VISHNU KR. BHARGAVA VS. ITO 13 ISSUED/SERVED ON HIM. THE ASSESSEE CLAIMS THAT IT IS THE BURDEN OF THE DEPARTMENT TO SHOW THAT THE NOTICE WAS SERVED ON THE ASSESSEE. THE DEPARTMENT HAS DISCHARGED ITS BURDEN BY REFERRING T O THE RECORD, WHICH CONFIRMS THE PROPER TRANSMISSION OF NOTICE BY REGIS TERED POST, RELIANCE ON SECTION 27 OF THE GENERAL CLAUSES ACT AND RELIAN CE OF THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. SHAN KAR LAL VED PRAKASH (SUPRA). IN OUR CONSIDERED VIEW, THE DEPARTMENT HAS DISCHARGED ITS BURDEN IN THIS BEHALF. 7.1 APROPOS THE ASSESSEES VEHEMENT RELIANCE ON THE CASE OF HOTEL BLUE MOON (SUPRA), IN THE GIVEN IT IS RATHER SUPPOR TS THE CASE OF THE REVENUE, INASMUCH AS THE HON'BLE SUPREME COURT HAS REFERRED TO ISSUANCE OF NOTICE U/S 143(2) WITHIN TIME LIMIT, WHIC H HAS BEEN AMPLY DEMONSTRATED BY THE DEPARTMENT. IN THESE CIRCUMSTAN CES, WE SEE NO MERIT IN THE GROUNDS OF ASSESSEE THAT THE ASSESSMEN T IN QUESTION WAS AB-INITIO VOID FOR WANT OF PROPER ISSUANCE/SERVICE O F NOTICE. THUS, THE ORDERS OF LOWER AUTHORITIES UPHOLDING THE SERVICE OF IMPUGNED NOTICE U/S 143(2) ON THE ASSESSEE ARE UPHELD. THEIR ORDERS ARE IN CONFORMITY WITH THE DECISION OF HONBLE DELHI HIGH COURT IN THE CAS E OF CIT VS. SHANKAR LAL VED PRAKASH (SUPRA) AND HON'BLE SUPREME COURT J UDGMENT IN THE CASE OF HOTEL BLUE MOON (SUPRA) IS UPHELD. ITA 629/JP/2011_ VISHNU KR. BHARGAVA VS. ITO 14 7.2 APROPOS THE MERITS OF THE CASE, THE ASSESSEE HA S NOT RAISED ANY GROUND BEFORE US CHALLENGING THE NON-ADMISSION OF A DDITIONAL EVIDENCE BY THE LEARNED CIT(A) UNDER RULE 46A. IN THE ABSENC E OF ANY GROUND CHALLENGING THIS ORDER, WE ARE UNABLE TO ENTERTAIN A NY PLEA ON MERITS TAKING THE BASIS OF ADDITIONAL EVIDENCE WHICH LEGAL LY IS NOT A PART OF THE RECORD. SINCE ON MERITS OF THE QUANTUM ADDITIONS, T HERE IS NOTHING ON RECORD NO INTERFERENCE CAN BE MADE IN THE ORDER OF LD. CTIT(A). IN VIEW THEREOF, THE QUANTUM ADDITIONS ARE UPHELD ASSESSEE S GROUNDS IN THIS BEHALF ARE DISMISSED. 8. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13/02/2015. SD/- SD/- VH-VKJ-EHUK VKJ-IH-RKSYKUH (T.R. MEENA) (R.P.TOLANI) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 13 TH FEBRUARY, 2015 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI VISHNU KUMAR BHARGAVA, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD 7(3), JAIPUR. 3. VK;DJ VK;QDRVIHY @ THE CIT(A)-III, JAIPUR. ITA 629/JP/2011_ VISHNU KR. BHARGAVA VS. ITO 15 4. VK;DJ VK;QDR @ CIT, JAIPUR 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 629/JP/2011) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR