INCOME TAX OFFICER WARD-43(1) DELHI, DELHI vs. NARESH ANEJA, NEW DELHI

This Revenue’s appeal for Assessment Year 2017-18, arises against the order of CIT(A)/NFAC, Delhi dated 16.03.2023 in DIN & Order No. ITBA/NFAC/S/250/2022- 23/1050843344(1) in proceedings u/s 143(3) of the Income Tax Act, 1961 (in short “The Act”).

Heard both parties at length. Case files perused.

We note during the course of hearing that apart from the Revenue’s instant appeal raising various substantive ground challenging correctness of the CIT(A)’s section reversing assessment findings inter alia making section 69A r.w.s. 115BBE addition of Rs.20,23,753/- followed by Chapter-VIA deduction disallowance to the tune of Rs.56,195/-, the assessee has preferred its application under Rule 27 of the 2 Naresh Aneja ITAT Rules wherein he challenges the assessment itself for want of a valid notice issued and served u/s 143(2) of the Act. It is in this factual backdrop that the Revenue could hardly dispute the clinching fact that not only the Assessing Officer’s assessment dated 28.12.2019 in paragraphs 1 & 2 made it clear enough that he had issued the relevant notice to this effect on 24.09.2018 which was served on 03.10.2018. And also that the assessee had not complied with the same before the Assessing Officer as per the assessment discussion in para 4 page 7 proceedings ex-parte against him u/s 144 of the Act. Learned counsel further invites our attention to the assessee’s second substantive ground to this effect raised which stood rejected by the CIT(A)/NFAC in paragraph 6.2 pages 5 & 6 of the lower appellate findings.

Faced with this situation and once the foregoing facts have made it clear that the learned Assessing Officer did not “serve” his foregoing section 143(2) notice as per the proviso thereto making it mandatory to get it “served” within the specified period and the said defect is nor curable as the assessee had not put his appearance before the Assessing Officer so as to get section 292BB attracted, we accept the instant Rule 27 application that the impugned assessment itself is not sustainable in the eyes of law going by CIT Vs. Laxman Das Khandelwal (2019) 417 ITR 325 (SC) having decided the very issue against the department. The impugned assessment dated 28.12.2019 framed by the learned Assessing Officer is quashed and the Revenue’s appeal stands rejected as the necessary corollary thereto.

All other pleadings on merits stand rendered academic.