MR. RAKESH KUMAR GUPTA,NEW DELHI vs. ITO, NEW DELHI

per proviso to Section 143(2) relevant to the assessment year under appeal, no notice under this clause shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished. He has submitted that since return was filed on 30th September, 2011, therefore, notice under section 143(2) would be served upon the assessee till 30th September, 2012. Learned Counsel for the Assessee submitted that no notice under section 143(2) have been served upon the assessee.

Therefore, assessment is bad in law and is liable to be quashed.

5 ITA.No.359/Del./2017 Shri Rakesh Kumar Gupta, New Delhi. City, Sector-49, Gurgaon, Haryana-122018 (paper book-1). He has submitted that notice dated 08th October, 2013 have been issued to the assessee on 295, V & PO–Kapashera, New Delhi. The Learned Counsel for the Assessee therefore, submitted that since no notice under section 143(2) have been served upon the assessee within the period of limitation, therefore, proceeding may be quashed. He has submitted that mere issuance of notice under section 143(2) of the Act, does not tantamount to service of notice and the requirement of law is the “service of notice” and not merely issuance of notice and relied upon the decision in the case of ACIT vs. Hotel Blue Moon 321 ITR 362. He has also relied upon the decision of the Hon’ble Delhi High Court in the case of CIT vs. Chetan Gupta 382 ITR 613 in which it was held that burden is on the Revenue to establish the service of notice and no material has been brought forward in the impugned matter to suggest the service of the notice under section 143(2) of the I.T. Act.

Therefore, the notice under section 143(2) could be served upon the assessee latest by 30th September, 2012. Ld. D.R. filed copy of the notice dated 07th September, 2012 in which the address of the 7 ITA.No.359/Del./2017 Shri Rakesh Kumar Gupta, New Delhi. assessee has been given as 290, V & PO-Kapashera, New Delhi.

However, in the intimation issued under section 143(1), the address of the assessee has been given as 13/1/4, Emilia Vatika City, Sector-49, Gurgaon, Haryana-122018. The assessment order, however, is passed at the address of assessee at 434, Meera Bagh, New Delhi. The Ld. D.R. also filed address of the assessee as per PAN data base i.e., at 295, V & PO-Kapashera, New Delhi and as

per the return, the address of the assessee is 290, V & PO- Kapashera, New Delhi. The A.O. in the assessment order has mentioned that notice dated 07th September, 2012 have been issued to the assessee fixing hearing on 18th September, 2012 through Speed Post. However, the A.O. has not mentioned in the assessment order whether the said envelope containing the notice had been served upon the assessee or had been received back unserved. No order sheet for 18th September, 2012 on which date the compliance is to be made by the assessee has been recorded by the A.O. Copy of the order sheet filed on record suggests that after 07th September, 2012, A.O. did not record any order sheet on 18th September, 2012. The A.O. thereafter, recorded order sheet on 24th

8 ITA.No.359/Del./2017 Shri Rakesh Kumar Gupta, New Delhi. September, 2012 and on that date A.O. issued notice under section 143(2) to the assessee at the another address of assessee at Sohna Road, Gurgaon and fixed the case for compliance on 28th September, 2013. Thereafter, no order sheet on 28th September, 2013 have been recorded. Thereafter, A.O. straightaway recorded the order sheet on 26th August, 2013 issuing notice under section 143(2) and 142(1) for 11th September, 2013 and notices under section 133(6) to Auditor for 09.09.2013. Thereafter, order sheet on 08.10.2013 have been recorded to issue notice under section 143(2) and 142(1) for 14.10.2013, by that these limitation expired on 30.09.2012. These facts clearly show that A.O. did not record anything in the order sheet about the service of the notice under section 143(2) against the assessee and no such fact has been recorded in the assessment order as well. The A.O. has issued notice to the assessee at different addresses. Notice dated 07th September, 2012 have been issued at the address at 290, V & PO- Kapashera, New Delhi and if the said notice have been served upon the assessee in the ordinary course of business, there was no necessity for the A.O. to issue further notice under section 143(2)

9 ITA.No.359/Del./2017 Shri Rakesh Kumar Gupta, New Delhi. on 24th September, 2012 at the address at Sohna Road, Gurgaon.

These facts clearly prove that the notice under section 143(2) dated 07th September, 2012 and 24th September, 2012 have not been served upon the assessee and the true facts are not brought on record. The assessee denied service of the notice in the additional ground of appeal so admitted. It may be noted here that when additional ground was admitted on 29th August, 2017, Ld. D.R. was directed to place on record the evidence of service of notice under section 143(2) of the I.T. Act. However, the Ld. D.R. apart from filing copy of the notice under section 143(2) dated 07th September, 2012, bearing postal stamp, did not produce any evidence of service of the notice under section 143(2) of the I.T. Act. In the facts and circumstances and in view of the above discussion, even the presumption could not be raised in favour of the Revenue that the notice under section 143(2) have been served upon the assessee within the period of limitation. In view of the above, I am of the view that Revenue failed to produce any evidence of service of the notice under section 143(2) of the I.T. Act upon assessee within the period of limitation. Therefore, the assessment order so passed is without

10 ITA.No.359/Del./2017 Shri Rakesh Kumar Gupta, New Delhi. jurisdiction and void abinitio and is liable to be quashed. The decisions relied upon by the Ld. D.R. would not support the case of the Revenue because of the facts noted above. In view of the above, I set aside the orders of the authorities below and quash the assessment order. Resultantly, all additions would stand deleted.

The additions are not decided separately because the same are left with academic discussion only.