TMI Blog2013 (10) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... ny whose employees/consultant are the Members of the family. Thus, service of notice is sufficient as per the ratio laid down in the case of CIT vs. Smt. Kanti Devi Gupta; [2004 (9) TMI 41 - MADHYA PRADESH High Court] – Decided in favor of Revenue. - Income Tax Appeal No. - 15 of 2011 - - - Dated:- 25-10-2013 - Hon'ble Rajiv Sharma And Hon'ble Dr. Satish Chandra,JJ. For the Appellant : D. D. Chopra For the Respondent : Amit Shukla, S. K. Garg ORDER (Delivered by Hon'ble Dr. Satish Chandra J.) Present Appeal is filed by the department under Section 260-A of the Income Tax Act, 1961, against the judgment and order dated 01.11.2010 passed by the Income Tax Appellate Tribunal, Lucknow in I.T.A. No.66/Luc/2007 for the assessment year 1999-2000. On 06.09.2011, a coordinate Bench of this Court has admitted the instant appeal on the following substantial questions of law: 1. Whether after service of notice and keeping in view the fact that the assessee has participated in the proceedings voluntarily without making any objection, then at later stage, the appellate forum was not right to record a finding that the notice was not validly served, hence the proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order dated 01.11.2010, the Tribunal has decided the validity of the notice issued under section 148 dated 25.02.2004 and finally observed that since there was no valid service of notice, so, the A.O. does not get the jurisdiction to make the assessment. Being aggrieved, the department has filed the present appeal. With this background, Sri Prashant Kumar, learned counsel for the department submits that Sri O. P. Nehru, who received the notice, which was issued under section 148 dated 25.02.2004, at the assessee's premises was the legal officer of the assessee company and earlier, on several occasions, had received the different notices issued by the department. Being legally well versed person and considering the past record that all the notices received by him were complied with, the said person may be considered as having implied authority to receive notice. In case, had he denied or refused to receive the notice, the department had adequate time to get it served by any other alternative modes. But the objection to this effect was only raised by filing M.A. before the Tribunal. He also submits that ITAT has ignored that service of notice on Sri O. P. Nehru for assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the notice under section 148 dated 25.02.2004 was not served through post but through process server on one Sri O. P. Nehru, who was neither the Principal Officer of the assessee company nor had the authority to receive such notice. Even Sri Dinesh Singh whose Power of Attorney was filed, came on the scene only after the notice under section 143 (2) dated 30.06.2004 was served on him. At the time of service of notice, on 10.03.2004 Sri Dinesh Singh had no authority to receive such notice. On specific query from the Bench, he admits that Sri Dinesh Singh is a Chartered Accountant and representing the assessee company on earlier occasions. In support of his submission, he relied on the ratio laid down in the assessee's case Harsingar Gutkha Pvt. Ltd. vs. Cit; [2011] 336 ITR 90 (Alld.), where it was observed that : "The notice under section 143 (2) was served on the chartered accountant in the business premises of the assessee. The Tribunal should examine the material on record and give a basis for coming to the conclusion that the chartered accountant possessed requisite authority to receive the notice. The Tribunal had not considered Order V Rule 12 of the Code which contemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office of the assessee company. The server of the department has served the notice in good faith and now by raising the technical ground, the assessment order cannot be set aside specially when the assessee has already voluntarily participated in the appellate proceedings. Inspiration may be drawn from the Section 292 BB, though the same is not applicable during the assessment year under consideration but the fact remains that the assessee has participated voluntarily in the appellate proceedings. In the case of Sohan Singh Basi and another vs. Inspecting Assistant Commissioner of Wealth Tax and Others; (1992) 194 ITR 339 (Delhi), it was observed that : "Where, pursuant to receipt of notice by a chartered accountant, the assessee files a return of wealth and raises no objection before the wealth - tax authorities to the effect that the chartered accountant had no authority to accept notice, it is difficult for the court to believe that such a chartered accountant would accept a reassessment notice under section 17 of the Wealth Tax Act,1957, without his being authorized to do so. The petitioner filed a writ petition challenging a notice of reassessment under section 17 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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