1. These Stay Applications arose out of the appeals filed by the assessee before ITAT in ITA No.5222 & 5221/Mum/2014, in the matter of order passed u/s. 143(3) r.w.s. 147 of the IT. Act for the assessment year 2008-09.

2. In these stay applications, the assessee has basically argued legality of the assessment framed u/s. 143(3) r.w.s. 147 in view of the fact that there was no service of notice u/s. 143(2). It was contended by learned AR that in respect to notice u/s. 148 dated 30-8-2011, the assessee has filed return of income on 10-10-2011. The statutory time limit to serve notice u/s. 143(2) was till 30-9-2012, ie. six months from end of the financial year in which return was furnished. As per learned AR no notice u/s.143(2) has ever been issued and served on the assessee before completion of assessment. Due to non-compliance of statutory notice u/s.143(2), the assessee has filed objection against the jurisdiction, vide letter dated 10-10-2012 submitted at the office of AO on 2-11-2012 in accordance with the provisions of Section 292BB of the Act. As per learned AR the objection raised by the assessee has not been disposed by the AO and he proceeded with the assessment. The basic thrust of learned AR to substantiate the prima facie case in assessee's favour for grant of stay was non-service of notice u/s.143(2), which goes to the root of validity of the assessment so framed.

3. As the issue of notice u/s.143(2) goes to the root of validity of the assessment so framed, the bench considered it appropriate to hear this issue and decide the appeals on merits. Accordingly, learned DR was directed to produce the assessment records. The case was adjourned to 9-9-2014 for allowing DR to produce the necessary assessment records. Assessment records were produced by learned DR on 9-9- 2014 which were examined by the Bench and matter is now decided on legality of the assessment so framed u/s.143(3) r.w.s.147 without service of notice u/s.143(2) of the I.T.Act.

4. The assessee in its appeals, has taken the following grounds :—

"1. On the facts and circumstances of the case and leg Ld. Commissioner of Income Tax (Appeals) erred in confirming the reopening the assessment in absence of reason to believe and material on records and such reopening of the assessment is bad law and erroneous in facts and it is liable to be quashed.

2. On the facts and circumstances of the case and leqal propositions; Hon'ble Commissioner of Income Tax (Appeals) erred in confirming the assessment/reassessment order in spite of the fact that notice under section 143(2) of "Income Tax Act, 1961 was not served to the assessee. Hence, the assessment .is bad in law and liable to be annulled.

3. On the given facts: circumstances and judicial pronouncements Ld. Assessing Officer erred in making addition of loan/advances between M/s Nishotech Systems Pvt Ltd and M/s Sanitech Engineering Pvt Ltd. by treating the same as deemed dividend u/s 2(22)( e), ignoring the fact that such addition is bad in law and erroneous in facts and liable to be deleted."

5. Learned AR vehemently argued that neither there was service of notice u/s.143(2) by postal authorities nor there was proper service by affixtures.

6. On the other hand, the contention of learned DR was that since notice sent u/s.143(2) by postal authorities were returned unserved, therefore, the Inspector served the notice through affixtures. Our attention was also invited to the Inspector's report placed in the paper book wherein vide letter dated 27-7-2012, the Inspector has reported to DCIT-10(3) that he has visited assessee's premises on 27-7-2012 to service the notice u/s.143(2) for the A.Y. 2008-09 in the case of Sanjay Badani. As per the Inspector, on reaching the said premises, it was found that the said premises was locked. Therefore, the said notice was served on assessee by affixture on 27-7-2012.

7. It was argued by the learned AR that in spite of asking under Right to Information, the department has not served pro