PHULVATI,GHAZIABAD vs. ITO, WARD- 1(2), GHAZIABAD

Date of hearing: 14/08/2019 Date of Pronouncement: 14/10/2019 ORDER PER R.K PANDA, AM:

This appeal filed by the assessee is directed against the exparte order dated 27.02.2018 of the CIT(A)-2, New Delhi relating to A. Y. 2009-10.

1. That on the facts and in the circumstances of the petitioner’s case, the learned Assessing Officer erred in law and on facts in wrongly assuming jurisdiction under section 148 of the Income tax Act, 1961 in the case of the petitioner and without there being any application of mind or having sufficient reasons to believe that any income chargeable to tax has escaped assessment. Thus the action of framing the assessment for the relevant assessment year in appeal is based on suspicion, surmises and conjectures. That on the facts and in the circumstances of the petitioner’s case, the 2. learned Assessing Officer erred in law and on facts in framing the assessment under section 144/147 of the Income tax Act, 1961 on 31-10- 2016 whereas the date fixed for hearing was on 04-11-2016, as such the action of the learned assessing in making the assessment order under section 144/147 of the Act is not only illegal and bad in law but such order is also nullity in law which needs to be quashed forthwith.

3. That on the facts and in the circumstances of the petitioner’s case, the learned Assessing Officer erred in law and on facts in failing to issue the notice under section 148 of the Act to the petitioner and further effecting its service on the petitioner within the limitation period on 31st March, 2016.

4. Without prejudice the Learned Assessing Officer has miserably failed to follow the mandated procedure to affect the service of notice under section 148 through affixture, thus defying the legal compliance as contemplated in law leading to framing the assessment under section 144/147 of the Act also bad in law. 5. That on the facts and in the circumstances of the petitioner’s case, the learned Assessing Officer erred in law and on facts in making the additions of Rs.4340000 being investment made by the petitioner for purchase of immovable property, without considering the material evidence placed on record and framing the ex parte assessment on the basis of suspicion and without bringing on record any material evidence whatsoever in support of his action.

6. That on the facts and in the circumstances of the petitioner’s case, the learned Assessing officer erred in law and on facts in charging interest under section 234A and 234b amounted to Rs.1336849. 6. The Ld. Counsel for the assessee strongly challenged the order of the CIT(A) sustaining the addition as well as upholding the validity of reassessment proceedings. The Ld. Counsel for the assessee referring to the page 17 of the paper book drew the attention of the bench to the notice u/s. 148 of the IT Act which was affixed at the address of the assessee on 06.06.2016 whereas the time period for issue of notice within a period of six years lapsed on 31.03.2016. Referring to page 119 of the paper book he drew the attention of the bench to the address of the assessee as per the sale deed which is the address in the letter issued u/s. 148 of the IT Act. Referring to page 4 of the paper book the Ld. Counsel for the assessee submitted that before CIT(A) the assessee had categorically stated that the notice issued u/s. 148 by the AO dated 17.03.2016 was returned back by the postal authorities undelivered due to wrong address. The AO has stated that the notice was served on the assessee through affixture. However, on inspection of the file no such record was found of such service of notice other than the report on the copy of notice itself by the ITI. The date of affixture as per the report is 06.06.2016 which is way beyond the due date by which notice must have been served on the assessee i.e. 31.03.2016. It was accordingly argued before the CIT(A) that the service of notice by affixture is merely an eye wash. Further the assessee is a well known lady in the small village where she is living since long and the Inspector has not approached any person nor there is any Page | 4 witness of such alleged affixture. He accordingly submitted that the service through affixture as alleged is sham and an eye wash. Referring to the copy of the assessment order he submitted that the AO has issued the show cause notice u/s.144 dated 26.10.2016 for compliance on 04.11.2016. However, the AO has passed the order on 31.10.2016 i.e. before the date of compliance as per the notice, therefore, on this ground also the assessment order is illegal.

7. So far as the merit of the case is concerned the Ld. Counsel for the assessee submitted that the assessee explained the source before the CIT(A) through additional evidences which were forwarded by him to the AO for remand report according to which the assessee has obtained an amount of Rs.35 lacs as gift from her son Sh. Sharvan Kumar and an amount of Rs. 8 lacs was out of her own savings. He accordingly submitted that both legally and factually the CIT(A) was not justified in sustaining the addition and upholding the validity of reassessment proceedings.

by the assessee on the issue of validity of the reassessment proceedings. Since the assessee succeeds on the legal ground raised by her, the ground on merit is not being adjudicated being academic in nature.

12. In the result, the appeal filed by the assessee is allowed.

Order pronounced in the open court on 14.10.2019.