TMI Blog2005 (3) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the assessee submitted that ground No. 1 being a preliminary ground, should be adjudicated first. In the alternative, he also made submissions on the remaining ground on merit. 5. The learned Departmental Representative justified the order of the learned CIT(A) for his findings on the issue involved in ground No. 1 and also on merits. 6. After hearing the parties and after going through the entire material on record, including the case law, to which reference was made by the learned representatives of the parties, we consider it proper to adjudicate ground No. 1 which has been reproduced above. 7. The facts concerning this ground, as found from the assessment order and the order of learned CIT(A), are as under. 8. The assessee was a public limited company, having its registered office atDelhi. Return for asst. yr. 1993-94 was filed by it before the Asstt. CIT, Company Circle 3(2),New Delhi, showing "Nil" income. The company started setting up a factory at Sikendrabad (UP) for the manufacture of plastic molded items. The construction/installation of the company was completed in March, 1996. The company commenced trading w.e.f.1st Oct., 1994, the return for asst. yr. 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the validity of. issuance of notice under s. 148 by the ITO, Bulandshahar, is concerned, the AO justified the same by assigning following reasons: "1. That the assessee-company has filed the return for asst. yrs. 1994-95 and 1995-96 with the ITO Ward-1, Bulandshahar. 2. That the assessee-company vide its letter dt.7th April, 1995, has stated that since the company has passed the resolution for shifting the registered office of the company fromDelhito Sikandrabad, hence it has filed the return for asst. yr.1994-95 (details of that letter were discussed above). 3. That the assessee-company has filed an application for a certificate under s. 230A(1) of the IT Act, 1961 on 12th May, 1997, with the ITO Ward-1, Bulandshahar, and the same was given to the assessee-company on 28th May, 1997." 13. Thus, the AO rejected the plea of the assessee by observing as under: "On the one hand the assessee-company has challenged the jurisdiction of the AO, Bulandshahar, for issuing notice under s. 148 and, on the other hand, in contradiction of its challenging the jurisdiction of the AO Bulandshahar, the assessee-company has applied to the company that the AO, Bulandshahar, has no jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horized to receive such notice and, therefore, the assessee did not file any return in response to notice under s. 148. It was also mentioned in para 8 of the aforesaid letter that the ITO, Bulandshahar, also issued notice under s. 143(2)/142(1) on 8th Feb., 2001, for asst. yr. 1995-96 and as a result of this notice the assessee-company came to know about the reassessment proceedings under s. 148. It was. further mentioned that the assessee filed letter dt.16th Feb., 2001, with which it had also filed copy of the IT returns filed by it before the AO,Delhi, along with the assessment order for asst. yrs. 1995-96 and 1996-97 and on that basis the ITO. Bulandshahar, dropped the proceedings for asst. yr. 1996-97. 17. In para 9 of the said letter it was further pleaded that the learned Asstt. CIT,New Delhi, was not justified in relying upon the proceedings initiated by the ITO. Bulandshahar, for asst. yr. 1995-96 under s. 148. 18. For challenging the jurisdiction of ITO, Bulandshahar, in issuing notice under s. 148 following specific plea was also taken: "(b) The ITO, Bulandshahar, did not have any jurisdiction over the case. Further, the ITO, Bulandshahar, did not have any juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had filed its return for the relevant assessment year nor had it put in any application for transfer of records. In a situation like this it is difficult for an AO to know where the return has been filed. The AO in Bulandshahar issued notices under s. 148 for asst. yrs. 1995-96 and 1996-97. The assessee claims that the notices under s. 148 were not served upon it. The AO has confirmed that the notice dt.11th Sept., 1998, was served upon Shri Ajay Pratap Singh at the factory premise of the assessee on18th Feb., 1998. The notices issued by the AO at Bulandshahar under ss. 143(2) and 142(1) were served upon Sh. Rajiv Aggarwal on10th Feb., 2001. The assessee then contended that since its returns were being filed inDelhi, the proceedings should be transferred there. It is evident that the assessee never informed the ITO, Bulandshahar, regarding filing of returns in Delhi and ITO, Bulandshahar, noticed that income had escaped assessment only in response to return filed under s. 148, the assessee itself filed the return for the asst. yr. 1995-96 with ITO, Bulandshahar. Moreover, it continued to file other documents such as application for certificate under s. 230A(1) and it was informe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, to the principal officer thereof; (c)..... (d) ...." 22. As the provision contained under sub-s. (2) of s. 282 is specific provision, the mode of service has to be adhered to in accordance with this provision. In the case of the present assessee, the notice was addressed at the following address: "M/s Sudev Industries Ltd., A-74/142, UPSIDC Industrial Area, Sikandrabad, District Bulandshahar" 23. The principal office of the company was at, "150, Sarai Julena,Okhla Road, Opposite Hotel Sofital Surya,New Delhi". Various notices have been issued at this address by the AO of New Delhi as well as by the AO of Bulandshahar. A notice dt.8th Feb., 2001, which is issued under s. 143(2) of the IT Act and a copy of which is available at p. 33 and which is for asst. yr. 1996-97, was issued by the Dy. CIT, Circle Bulandshahar. Similarly, notice was also issued by the AO of Bulandshahar for asst. yr. 1995-96 on19th Feb., 2001. A copy of this notice is available at p. 14H of the paper book. On going through the paper book it is found that various notices, copies of which are available at pp. 14A to 14H of the paper book, were sent atNew Delhiaddress and not at Bulandshahar addres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf nor any director or any other authorised person has received notice issued under s. 148 dt.11th Sept., 1998, of the Act issued by ITO, Bulandshahar for asst. yr. 1995-96." 26. The above affidavit remained uncontroverted as no counter-affidavit has been filed by the Department to show that Shri Rajiv Agarwal or any other director or authorized person received the notice. 27. In the case of Venkat Naicken Trust Anr. VS. ITO Anr. (2001) 166 CTR (Mad) 461 : (2000) 242 ITR 141 (Mad), the Hon'ble Madras High Court has held that when the assessee pleads that the assessee has not been properly served with any notice, it is for the Department to place the relevant material to substantiate their plea that the assessee was served with proper notices. 28. In view of the above, the first plea raised by the assessee deserves to be accepted. 29. On the second plea, the learned counsel for the assessee submitted that the AO did not have jurisdiction over the case to issue notice. By taking this plea, the assessee has challenged the jurisdiction of the AO of Bulandshahar in issuing the notice under s. 148. Shri Rakesh Gupta, learned counsel for the assessee pointed out that the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
