M/S. P.K. MITTAL (HUF),NEW DELHI vs. ITO, NEW DELHI

At the outset, ld. AR contended that the assessee has taken the ground before the CIT (A) that the assessment framed u/s 147/148 of the Income-tax Act, 1961 (hereinafter ‘the Act’) is void ab initio and no proper service of the notice has taken place on the assessee. The CIT (A) has not given any finding neither on the validity of the assessment nor on the validity of the service of the notice u/s 148. The ld. DR was also fair enough to concede that the assessee has taken ground no.1 to this effect before the CIT (A) but the CIT (A) has not given any finding.

I have carefully considered the submissions made by both the parties and have gone through the orders of the tax authorities below. I noted that the assessee has taken ground no.1 before the CIT (A) to the extent that the assessment order framed by the AO is bad in law and on facts of the case, the assessee made submissions before the CIT (A) in this regard about the non-service of the notice issued u/s 148 dated 29.03.2011, notice issued u/s 142(1) dated 24.08.2011 and non-service of the show cause notice dated 12.10.2011. I noted that the CIT (A) even though did not dispose of this ground but observed that ground no.1 is general in nature. In my opinion, ground taken by the assessee is a legal ground and goes to the basic foundation of the validity of the assessment. I, therefore, in the interest of justice and fair play to both the parties, set aside the order of the CIT (A) and restore this issue to the file of the CIT (A) with the direction that CIT (A) shall decide this ground in accordance with law.

Since I have already restored the ground regarding the validity of the service of the notice to the file of the CIT (A), therefore, in the interest of justice, I restore all other grounds i.e. grounds no.3, 4 & 5 taken by the assessee to the file of the CIT (A) with the direction that CIT (A) shall decide these grounds afresh in accordance with law after hearing and giving proper opportunity to the assessee by passing a speaking order. In the result, the appeal filed by the assessee is restored to the file of the CIT (A).

In the result, the appeal of the assessee is statistically allowed.