Decided on August 22,2014

P.A. Chacko Muthalaly Appellant


Amit Shukla, Member (J) - (1.) THE present appeal has been preferred by the assessee challenging the impugned order dated 22nd February 2013, passed by the learned Commissioner (Appeals) -XXXII, Mumbai, for the quantum of assessment passed under section 143(3), of the Income Tax Act, 1961 (for short "the Act"), for the assessment year 2001 -02, on the following grounds: - 1. learned CIT(A) -32, Committed a gross error of law and facts in dismissing the Appeal and concluding that notice was served on 31 -10 -2002. 2. HE failed to appreciate the facts that no notice was served Vis. 143(2) within the prescribed time of one year i.e. before 31 -10 -2002. He Failed to appreciate the facts that the notice Vis. 143(2), was served beyond the statutory period on 15.11.2002, that too on the Sweeper of relative of the appellant. 3.HE erred in not calling for original records of assessment proceeding for his verification. 4.HE failed to appreciate the facts that the order passed by the A.O. was bad in law since, notice v/s 143(2) was not issued on the appellant within the statutory period of one year i.e. before 31.10.2002.
(2.) Facts in brief: - The relevant facts, qua the issue raised in the aforesaid grounds, are that the assessee is an individual who had filed his return of income on 31st October 2001, at an income of Rs. 5,85,800. As per the noting appearing in Para -2/Page -1, of the assessment order, the assessee's case was selected for scrutiny and accordingly notice under section 143(2) dated 29th October 2002, was served upon the assessee on 31st October 2002. Thereafter, the notice under section 142(1) dated 6th December 2002 was issued. In response to the notices, the assessee was represented by his authorised representative from time to time and furnished the details for the purpose of scrutiny assessment. The assessee is an electrical engineer carrying on the business in the name and style "Livetech" from his resident. As against the returned income, the assessment was completed under section 143(3), at an income of Rs. 17,90,306, after disallowing the claim of deduction under section 80RRA, disallowance of travel expenditure, telephone expenditure, motor car expenses and depreciation on car. Aggrieved by the said order, the assessee preferred an appeal before the learned Commissioner (Appeals) and besides challenging the additions made therein, also raised the legal issue of validity of the assessment under section 143(3) on the ground that notice under section 143(2) was not served upon the assessee before the statutory period of 12 months from the end of the month in which the return of income was filed that is before 31st October 2002. The learned Commissioner (Appeals), vide order dated 21st April 2005, had confirmed most of the addition/disallowance, however, did not adjudicate the issue of validity of service of notice under section 143(2) within the statutory time.
(3.) In the second appeal filed before the Tribunal besides agitating the grounds on merits, the assessee also raised the ground that the learned Commissioner (Appeals) has erred in not adjudicated the ground relating to validity of the assessment and service of notice under section 143(2). The Tribunal vide order dated 26th June 2008, remanded back the matter to the file of the learned Commissioner (Appeals) to decide the ground pertaining to validity of the assessment on the ground of service of notice under section 143(2) only. Thus, in the second round, the learned Commissioner (Appeals) was be sized with the adjudication of service of notice under section 143(2).;

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