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12-06-2019, Veerendra Kumar Patel, Section 45(5), 139A(5)(d), Tribunal Hyderabad

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5 days 20 hours ago #9740 by amit
Section - 45(5), 139A(5)(d), 144
Order Date - 12-06-2019
Favouring - Assessee Partly
Court - Tribunal Hyderabad
Appellant - Veerendra Kumar Patel
Respondent - ITO
Justice - P. MADHAVI DEVI JM & S. RIFAUR RAHMAN AM
Citation - 619Taxpundit156
Appeal No. - ITA No. 295/Hyd/2018
Asstt. Year - 2013-14

Order

PER : S. RIFAUR RAHMAN

This appeal filed by the assessee is directed against the order of CIT(A) – 1, Hyderabad, dated, 24/11/2017 for AY 2013-14.

2. Brief facts of the case are, assessee, an individual, filed his return of income for the AY 2013-14 on 23/03/2015 declaring an income of Rs. 1,74,000/-. Subsequently, the case was selected for scrutiny under CASS and accordingly, notice u/s 143(2) of the Income-tax Act, 1961 (in short ‘the Act’) was issued on 31/08/2015 and the same was served on 30/09/2015. Notice u/s 142(1) and final show cause letters were issued to the assessee, against which there was no compliance from the assessee. Since there was no compliance from the assessee, the AO completed the assessment u/s 144 of the Act by taking information from AP Mahesh Cooperative Bank. Accordingly, additions were made to the extent of Rs. 31,27,439/-.

3. Aggrieved with the above order of AO, assessee preferred an appeal before the CIT(A) and before the CIT(A) the assessee submitted that assessee has filed its return of income with ITO, Ward – 9(1), Hyderabad. However, the case was selected for scrutiny by ITO, Ward - 4(2), Hyderabad and submitted that the ITO, Ward – 4(2) does not have jurisdiction over the assessee. Further, he submitted that notice dated 31/08/2015 was issued u/s 143(2) by ITO, Ward – 4(2)posting the case on 28/09/2015 for hearing, but, it was only served on the assessee on 30/09/2015 i.e. after the date of expiry of date of hearing. Since notice was impossible to comply with, hence, not a valid notice, which was served on the assessee after the expiry of period of limitation u/s 143(2). It was, therefore, submitted that the assessment was barred by limitation and without jurisdiction.

3.1 The CIT(A) called for a remand from the AO on jurisdiction as wel as on merit.

3.2 With regard to jurisdiction issue, the AO submitted a remand report on 27/09/2017, which is extracted as under:

“• Notices were served on the assessee by way of affixture, including the assessment order and demand notice.

• The return was filed with the address 16-2-148/8/1, 1 st Floor, Opp. Adarsh Vidya Mandir School, Dayanand Nagar, New Malakpet, Hyderabad. Prior to AY 2013-14, the assessee was being assessed with ACIT-4(1), Hyderabad.

The first notice u/s.143(2) was received by assessee's wife on 30.09.2015 vide acknowledgement available on record.”

3.3 The assessee replied to the remand report, which is extracted as under:

“• The assessee submitted that notice u/s.143(2) dated 31.08.2015 was served on the assessee 30.09.2015 and not by service by affixture. Since the assessee was out of station his wife Mrs. Archana Patel went to Income Tax Office to receive notice on his behalf.

• The assessee submitted that notice u/s.143(2) dated 31.08.2015 was served on assessee on 30.09.2015 but the date of hearing in the notice was 28.09 2015 and not 31.10.2015. Therefore the first notice u/s.143(2) dated 31.08.2015 was un compliable notice and hence invalid.

• Regarding the enquiries made and nspectors report, the assessee submitted that no such statement was given by the owner of the premises (assessee's brother). The assessee submitted Affidavit of his brother Shri Suresh Chandra Patel.

• The assessee submitted he corresponded his address i.e., 14-9413, Chudi Bazaar, Hyderabad, vide letter dated 26.04.2016 to the Assessing Officer.

• The assessee submitted that except notice u/s.143(2) dated 31.08 2015, no further notice was served on him.

• The assessee submitted that the proceedings were made without jurisdiction, as assessee's address falls in jurisdiction of Range-9, Hyderabad, since he filed return of income in Range-9, Hyderabad.”

3.4 After considering the remand report and the reply of the assessee against the remand report, the CIT(A) dismissed the grounds raised by the assessee by observing as under:

“ a) The notices were issued to the address given as per Return of income filed. No other addresses were mentioned in the return or in the subsequent correspondences during the assessment proceedings. In regard to the address of the assessee, on which jurisdiction of assessment has been questioned, was 16-

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