If assessee do not received any notice than the decision taken cannot be consider as valid decision

IN THE INCOME TAX APPELLATE TRIBUNAL

DELHI BENCH ‘G’: NEW DELHI

BEFORE SHRI G.D.AGRAWAL, VICE PRESIDENT AND

SHRI A.D.JAIN, JUDICIAL MEMBER

ITA No.3329/Del/2010

Assessment Year: 2006-07

M/s Shivam Cool Drinks Pvt.Ltd.,

24-A, Shivaji Marg,

Najafgarh Road,

Delhi – 110 015.

PAN: AAKCS1465N.

(Appellant)

Vs.

Income Tax Officer,

Co.Ward – 8(2),

New Delhi.

 (Respondent)

Appellant by: Shri Salil Aggarwal, Advocate.

Respondent by: Ms.Shumana, Sr.DR.

ORDER

PER G.D.AGRAWAL, VP:

In this appeal by the assessee, following grounds are raised:-

“1. That the order is against law and facts of the case.

2. That the ld.Commissioner of Income Tax (Appeals) was not justified in confirming the action of the Assessing Officer in passing the order u/s 144 of the Income Tax Act.

3. That the ld.Commissioner of Income Tax (Appeals) was not justified in confirming the action of the Assessing Officer in making additions by adding the liability of Rs.21,30,520/-.

4. That the ld.Commissioner of Income Tax (Appeals) was not justified in confirming the action of the Assessing Officer in making addition of all expenses debited to the Profit Loss Account whereas the ld. Assessing Officer assessed the same expenses u/s 115W(3) for calculation of FBT.”

2. At the time of hearing before us, it is stated by the learned counsel for the assessee that in this case, the notice of hearing was served by affixture. Thus, it is clear that no notice was actually received by the assessee ever. He further pointed out that even if the service of notice may be held to be technically valid and consequently the assessment under Section 144 to be valid, even in the assessment under Section 144, the Assessing Officer is supposed to make a reasonable and proper estimate of income. That the Assessing Officer added the entire liability standing in the balance sheet presuming to be unexplained without even verifying whether the liability is new or old. The Assessing Officer also disallowed the entire expenses debited to the profit & loss account. By no stretch of imagination, such action of the Assessing Officer can be held to be justified. He, therefore, submitted that the orders of authorities below may be set aside and the matter may be restored to the file of the Assessing Officer for readjudication.

3. The learned DR relied upon the orders of authorities below.

4. We have carefully considered the arguments of both the sides and perused the material placed before us. On the facts of the case, we are of the firm opinion that the case requires readjudication at the hands of the Assessing Officer. We, therefore, set aside the orders of the authorities below and restore the matter to the file of the Assessing Officer. We direct him to allow adequate opportunity of being heard to the assessee and thereafter make the assessment afresh de-novo in accordance with law.

5. In the result, the assessee’s appeal is treated to be allowed for statistical purposes.

Decision pronounced in the open Court on conclusion of hearing on 10th May, 2012.

                                                           Sd/-                         Sd/-

                                                  (A.D.JAIN)           (G.D.AGRAWAL)

                                          JUDICIAL MEMBER  VICE PRESIDENT

Dated: 10.05.2012

VK.

Copy forwarded to: -

1. Appellant: M/s Shivam Cool Drinks Pvt.Ltd., 24-A, Shivaji Marg, Najafgarh Road, Delhi – 110 015.

2. Respondent: Income Tax Officer, Co.Ward – 8(2), New Delhi.

3. CIT

4. CIT (A)

5. DR, ITAT

Assistant Registrar