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Income Tax Appellate Tribunal, DELHI BENCHES : SMC-II : NEW DELHI
Before: SHRI J. SUDHAKAR REDDY
ORDER This appeal filed by the assessee is directed against the order of the CIT(A)-XX, New Delhi, dated 21.01.2015 for assessment year 2001-02.
After hearing the rival contentions and perusing the material on record, I hold as follows.
I first dispose of ground No.1, which reads as follows:-
“1. On the facts and in the circumstances of the case as well as in law, the ld. Commissioner of Income Tax (Appeals) grossly erred in:- a) Holding that the Notice u/s 148 of Income Tax Act, 1961 was validly served on the appellant. b) Holding that the objection for re-opening of the assessment was disposed of by the ld. Assessing Officer. c) Holding that re-opening of the assessment is valid which is otherwise bad in law and without jurisdiction. d) Holding that the copy of adverse material used against the assessee was provided to the assessee.”
On the issue of service of notice, the ld.CIT(A) at para 5.2 states that the assessee has responded to the notice issued u/s 148, vide his letter dated 23.10.2008 and, hence, there is no valid ground to state that notice u/s 148 has not been served. In my view, such plea cannot be taken. The AO has evaded the issue whether the notice u/s 148 was served or not.
The assessee has been contending all along that no notice was served on it. The contention was raised before the ld. AO also. The jurisdictional High Court in the case of CIT vs. Ishan Holdings Ltd. (2009) TIOL 495 (Del) and in the case of CIT vs. Rajesh Kumar Sharma, 311 ITR 235, has decided in favour of the assessee. Thus, this assessment has to be 2 annulled as without jurisdiction on the sole ground of non-service of notice u/s 148 of the Act on the assessee. Even otherwise, admittedly, the assessee has filed his objections for re-opening of assessment. The AO has not disposed of these objections. The Hon’ble Delhi High Court in the case of Pr. Commissioner of Income Tax vs. Tupperware India Pvt. Ltd., in vide para No.6, has held as follows:-
“6. The Court is of the considered view that after having correctly understood the decision of the Supreme Court in G.K.N. Driveshafts (India) Ltd. (supra) as mandatorily requiring the AO to comply with the procedure laid down therein and to dispose of the objections to the reopening order with a speaking order, the CIT(A) committed an error in not quashing the reopening order and the consequent assessment.”
Respectfully following the jurisdictional High Court decision, we hold the assessment is bad in law.
In the result, the appeal of the assessee is allowed.