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09-07-2019, SHUBHANI ENGINEERING, 282, 33B, 158BD, Tribunal Delhi

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1 week 1 day ago #10015 by amit
Section - 282, 33B, 158BD, 158BO, 144
Order Date - 09-07-2019
Favouring - Assessee
Court - Tribunal Delhi
Appellant - SHUBHANI ENGINEERING & CONSULTANTS PVT. LTD.
Respondent - ITO
Justice - H.S. SIDHU JM & B.R.R. KUMAR AM
Citation - 719Taxpundit109
Appeal No. - ITA NO. 1431/DEL/2012
Asstt. Year - 2007-08

Order

PER : H.S. SIDHU JM

Assessee has filed this appeal against the impugned order dated 16.8.2010 passed by Ld. CIT(A)-XI, New Delhi on the following grounds:-

1. That on the facts and in the circumstances of the case, the Hon’ble CIT(A) has erred in holding that assumption of the jurisdiction of AO u/s. 143(3)/144 was correct simply following the order of his predecessor for AY 2005-06.

2. That on the facts and in the circumstances of the case, the Hon’ble CIT(A) has erred in holding the net profit @5% of the declared turnover as agaisnt the declared results imply following the order of his predecessor for the AY 2005-06.

3. That on the facts and in the circumstances of the case, the Hon’ble CIT(A) has erred in holding the amount of Rs. 6,53,00,957/- as undisclosed turnover and further erred in holding the net profit @5% of the alleged undisclosed turnover simply following the order of the predecessor for the AY 2005-06.

4. That the appellant craves liberty to add, alter, vary or amend any ground of appeal.

2. The brief facts of the case are that the Assessee Company was incorporated on 21.3.1990 and was engaged in the business of providing engineering consultancy and contract work. Assessee filed its return of income on 30.10 2017 declaring income of Rs. 36,895/-. The AO issued notices u/s. 143(2) of the Income Tax Act, 1961 (in short “Act”) and u/s. 142(1) of the Act and served unto the assessee. In response to the same, the AR of the Assessee has not accepted the contention of the Assessee and held that the assessee was not in a position to rebuild the books of accounts and requested that the best judgement u/s. 144 of the Act may be resorted to. The AO has also given the notice to the assessee asking why the best judgment assessment u/s. 144 of the Act should be not be completed by presuming 5% of the total turnover. In response to the same, Assessee contended that the return of income of the assessee
be accepted and the presumption of net profit @5% is unjustified and is on higher side. After considering the reply filed by the assessee the AO completed the assessment on the total income of Rs. 68,78,240/- by making the addition under the head declared turnover of Rs. 36,12,192/- and un-disclosed turnover @5% of the turnover of Rs. 32,65,048/- vide his order dated 18.12.2009 passed u/s. 143(3) of the I.T. Act, 1961. Against the action of the AO, assessee appealed before the Ld. CIT(A), who vide his impugned order dated 16.8.2010 has dismissed the appeal of the assessee by upholding the action of the AO. Aggrieved with the impugned order dated 16.8.2010, assessee is in appeal before us.

3. At the time of hearing, Ld. Counse for the assessee has stated that AO has served the notice u/s 143(2) of the Act after the expiry of the limitation period. He fu ther stated that the assessment was completed without demonstrating/ providing the service of the notice u/s. 143(2) of the Act and even without providing an opportunity of inspection of the assessment record. Ld. Counsel for the Assessee further submitted that the service of the first notice u/s. 143(2) of the Act dated 16.9.2018 of hearing dated 22.9.2018 which was earlier sent by speed post and returned undelivered and is claimed to be served by affixture on24.9.2008 at E-82, Mayur Vihar, Phase-II, Delhi – 110 091 is an invalid service as the company as per its return of income specified its address as 311 D-5, Avadh Complex, Laxmi Nagar, Delhi – 110 092, which is attached with the Paper Book Page 1, 8, 9. He further submitted that service of the second notice dated 24.9.2008 of hearing dated 30.9.2008 is claimed to be served at WB-12-B, Gali No. 1, School Block, Shakar Pur, Delhi – 110 092, a copy of which is attached with Paper Book page no. 10-11. The address as admitted by the AO was based on the address provided by the assessee in the power of attorney filled for the AY 2006- 07, copy thereof is at page no. 22 of Paper Book. It was further submitted that this is claimed that the notice was sent through the process server and as the company was not found at the given address the notice was ultimately served by affixture on 25 9.2008. It was further submitted that the claim is prima facie incorrect as the address ‘WB12B, Gali No. 1, School Block, Shakarpur, Delhi – 110 092’ was communicated by the assessee on 10.11.2008 and copy of letter dated 10.11.2008 and order sheet of the assessment record for the AY 2006-07 evidencing that the Power of Attorney was submitted on 20.11.2008 which is attached with Paper Book at page no. 26-27. It was further submitted that, all the communications addressed to the company, including se vice of notices from CIT(A) office are regularly served upon the company at this very address. In view of this conclusive evidences the service of notice dated 24.9.2009 which is claimed to be served on 25.9.2008 when address when the address itself was furnished on

10.11.2008 prima facie appears to be is a concocted piece of evidence which can be relied upon. It was further submitted that the service of the third notice dated 25.9.2008 of hearing dated 29.9.2018 which is claimed to be served by affixture on 25.9.2008 at 311, D-5, Avadh

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