TMI Blog2007 (12) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... ice under section 143(2) of the Act within a period of limitation and so assessment framed by the Assessing Officer under section 143(3) being invalid is required to be quashed. In view of this submission of the assessee, now, we shall dispose off Ground Nos. 1 and 2 involving this legal issue and the same are stated as under and as such we are not deciding the Ground Nos. 3 and 4 of the assessee on merits as submitted by the assessee:- (1) That the ld. Commissioner of Income-tax (Appeals) ['CIT(A)'] has erred in law and on facts in upholding the validity of notice under section 143(2) issued on 31-10-2002 i.e. being the last day for service thereof on the assessee. (2) That the ld. CIT(A) has erred in law and on facts in holding that the notice under section 143(2) issued on 31-10-2002 is deemed to have been served on that day itself, merely relying upon the judgment given by the Supreme Court of India in the case of Prima Realty v. Union of India (223 ITR 655), which is distinguishable on facts and in law. 4. Briefly stated, the facts relating to this issue are that in this case the assessment was completed on a total income of Rs. 6,78,17,980 as against declared income of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 143(2) of the Act was not served upon the assessee within the time limit prescribed in the proviso to section 143(2) of the Act i.e. on or before 31-10-2002, hence, the assessment order passed under section 143(2) is required to be quashed because as per provisions of section 143(2), the notice should be served on the assessee and mere issue of notice within the statutory period is not proper compliance of the provisions of section 143(2) of the Act. 7.1 Further, responding to the decision of the Apex Court in the case of Prima Realty, the Apex Court, referred to by the learned CIT(A) in his order, the learned AR for assessee submitted that in that case their Lordships were dealing with the payment made by cheque. Moreover, the ratio of this case is that whether the addressee has shown his desire either expressly or impliedly to send a cheque by post the property in the cheque passes to him as soon as it's posted. Therefore, the Post Office acts as an agent of the person to whom the cheque is sent and so the facts of that case are dearly distinguishable with the facts of the case of the assessee. 8. However, in support of his contention, he has relied upon the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice upon the assessee under section 143(2) of the Act within the statutory period of limitation i.e. on or before 31-10-2002 (in the instant case of the assessee) because in the instant case the notice was only issued by the Assessing Officer on 31-10-2002 but neither the same has been received back by the Assessing Officer nor the department is able to prove the service of the notice upon the assessee on 31-10-2002, therefore, the notice under section 143(2) of the Act is not proved to have been served upon the assessee on or before 31-10-2002 by the Department and, hence, any service of notice thereafter on a subsequent date is barred by a period of limitation as provided under proviso to section 143(2) of the Act. In our above view, we find support from the following case law:- 12.1 In the decision of the ITAT Delhi Bench "C" in the case of Whirlpool India Holdings Ltd. for the assessment year 2000-01, wherein the Tribunal held as under:- "15. As we have already considered various case laws by which it is held that the date of issue of notice has not been taken into consideration but the date on which the notice is served has to be taken into consideration and if it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistered cover." 12.6 In Meghji Kanji Patel v. Kundanmal Chamanlal Mehtani AIR 1968 Bom. 387, the Court observed that- "Where an ex parte decree is passed when the writ of summons has been sent to a defendant by registered post and the cover containing the summons has been returned with the postal endorsement "refused" it is undoubtedly for the defendant to satisfy the court that the letter was not tendered to him. But the defendant can only do so by making a statement on oath. This must usually remain uncontroverted, unless the postman who tendered the letter to him is summoned and makes a statement that he tendered the cover containing the summons to the defendant and after cross-examination, his evidence is believed. If the plaintiff does not summon the postman, the statement on oath of the defendant remains uncontroverted and in such a case there is sufficient ground for setting aside the ex parte decree." 12.7 In the case of CIT v. P.V. Kumar [2005] 279 ITR 9 (Delhi), their Lordships of Delhi High Court have observed in Para 2 of their order as under:- "2. Before this Court also, the respondent is not served. It appears that the Tribunal rendered the decision in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 held- "It is well-settled law that it is the duty of the revenue to establish service of a notice on which reliance is sought to be placed." 13. Thus, on the basis of our discussions, we have come to a conclusion that the revenue has failed in establishing the service of the notice under section 143(2) upon the assessee within period of limitation of 12 months i.e. on or before 31-10-2002 [in the instant case of the assessee] as required under the proviso to section 143(2) of the Act, so, the first point is decided in favour of the assessee and against the revenue. 14. Now coming to the second point we find that in case the revenue has failed to establish the service of the notice upon the assessee under section 143(2) within the statutory period of limitation provided under the proviso to section 143(2) then the assessment proceedings completed by the Assessing Officer in violation of statutory provision of section 143(2) are liable to be cancelled/quashed. In our above view we find support from the decision of Special Bench of the Tribunal in the case of Raj Kumar Chawla v. ITO [2005] 94 ITD 1 (Delhi) (SB) wherein the Tribunal held as under: "Though the appellants were ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
