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Income Tax Appellate Tribunal, DELHI BENCH “B”, NEW DELHI
Before: SH. BHAVNESH SAINI & SH. L. P. SAHU
O R D E R PER BHAVNESH SAINI, J.M :
This appeal by revenue has been directed against the order of Ld. CIT(A)–XIII, New Delhi, dated 19.08.2014 for assessment year 2007-08, on the following grounds .
1. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs. 1,96,49,829/- made u/s 80IA of the I.T. Act, ignoring the fact that the assessee had invested Rs. 11,81,67,736/- in plant and machinery and claimed deduction u/s 10A at Rs. 1,96,49,829/-. However, as per notification dated 24.12.1999 the ceiling for investment in small scale industries u/s 11B of the industries act was Rs. 1,00,00,000/- only.
2. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in holding that the assessment was null and void without considering the provision of sec 292BB of the IT Act.
3. The appellant craves leave to add, alter or amend any ground of appeal raised above at the time of hearing.
Ground No. 1 & 2.
Brief facts of the case are that assessment u/s 143(3) was completed in October, 2009, determining total income of Rs. 4.71 Crores. The AO after recording reasons for reopening of the assessment issued notice u/s 148 of the Income Tax Act and completed the assessment at Rs. 6.67 crores, vide order dated 28.01.2013 u/s 147/143(3) of the Income Tax Act.
The assessee challenged the assessment order before Ld. CIT (A), it was submitted that reassessment order is invalid ab initio because notice u/s 143(2) have not been issued and objection u/s 147 have not been decided by speaking order. The assessee relied upon the decision of Hon’ble Supreme Court in the case of GKN Driveshafs (India) Ltd. Vs. Income Tax Officer (259 ITR 19) and decision of Hon’ble Delhi High Court in the case of CIT vs Pawan Gupta (318 ITR 322).
Ld. CIT(A) after verification of assessment order record found that AO has only issued the notice u/s 142(1) of the Income Tax Act and no notice u/s 143(2) of the Act has been issued during the assessment proceedings. Ld. CIT(A) relied upon the decision of Hon’ble Supreme Court in the case of ACIT vs Hotel Blue Moon reported in 321 ITR 362 and others and decision of Delhi High Court in the case of Alpine Electornics Asia Pvt. Ltd., 341 ITR 247 in which it was held that service of notice u/s 143(2) within the statutory time limit is mandatory, Ld. CIT(A) held that the notice u/s 143(2) of the Act has not been issued in this case and omission on the part of the AO to issues notices u/s 143(2) of the Act cannot be procedural irregularities and is not curable. No assessment can be made without issuance of the notice u/s 143(2)
of the Income Tax Act. The assessment made by AO is therefore, null and void. Ld. CIT(A) by holding the assessment order to be null and void did not decide the appeal on merit.
We have heard Ld. DR, however, none has appeared on behalf of the assessee despite that service of the notice upon assessee. It is not in dispute no notice u/s 143(2) have been issued during the course of assessment proceedings. Ld. CIT(A) relied upon the decision of Hon’ble Supreme Court and jurisdicational High Court in which it was held that notice u/s 143(2) of the Act has not been issued in this case and the omission on the part of the AO to issue notice u/s 143(2) of the Act cannot be procedural irregularities and is not curable. Since, in the present case, Ld. CIT(A) on perusal of record found that AO did not issue notice u/s 143(2) before completion of assessment order, therefore, the assessment made by the AO is null and void. Ld. CIT(A) decided the issue in the light of provisions of Section 292BB of the IT Act. Since no notice u/s 143(2) has been issued, Ld. CIT(A) correctly decided issued against revenue department. No infirmity have been pointed out in the order of the Ld. CIT(A) in quashing the re- assessment order. The departmental appeal has no merit and the same is accordingly dismissed. In the result, appeal of the revenue is dismissed. Order pronounced in the open court on 13.11.2017. Sd/- Sd/- (L. P. SAHU) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER Date: 13.11.2017 @m!t