TMI Blog2009 (5) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... Sept., 2008 set aside the order of the Tribunal and remitted the matter to the file of the Tribunal for adjudication of the cross-objection on merits. The Hon'ble High Court has held that the Tribunal should not have adopted a hypertechnical approach and should have condoned the delay in preferring the appeal, in view of above, the impugned cross-objection has been recalled. 2. We have heard learned Representatives of both the parties and have gone through the material available on record. 3. Facts of the case are that the assessee filed return of income on 14th Oct., 2003. Notice under s. 143(2) was issued on 11th Oct., 2004 which was served on the assessee on 1st Nov., 2004. There is no dispute regarding the above dates. The learned counsel for the assessee during course of hearing argued that the assessee society is registered under MP Societies Registration Adhiniyam, 1973 and carrying out charitable activities in remotes areas of the country. The notice under s. 143(2) was served on the society on 1st Nov., 2004 and the assessee society vide letter dt. 20th Dec., 2004 had protested and intimated to the AO that the notice has been served beyond the limitation of 12 months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is clause shall be served on the assessee on or after the 1st June, 2003; (ii) notwithstanding anything contained in cl. (i), if he considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not underpaid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce or cause to be produced, any evidence on which the assessee may rely in support of the return: Provided that no notice under cl. (ii) shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished. (3) On the day specified in the notice,- (i) issued under cl. (i) of sub-s. (2), or as soon afterwards as may be, after hearing such evidence and after taking into account such particulars as the assessee may produce, the AO shall, by an order in writing, allow or reject the claim or claims specified in such notice and make an assessment determining the total income or loss accordingly, and determine the sum payable by the assessee on the basis of such assessment; (ii) issued under cl. (ii) of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (1) shall be deemed to have been paid towards such regular assessment; (b) if no refund is due on regular assessment or the amount refunded under sub-s. (1) exceeds the amount refundable on regular assessment, the whole or the excess amount refundable on regular deemed to be tax payable by the assessee and the provisions of this Act shall apply accordingly." 5. The learned counsel for the assessee contended that no notice was served on the assessee within the limitation of time prescribed under proviso to cl. (ii) of sub-s. (2) of s. 143 of the IT Act. This means that the return filed by the assessee became final and no-scrutiny proceedings were to be started in respect of that return of income. The learned Authorised Representative of the assessee in support of his submission placed reliance on various judgments. He placed reliance on the decision of Tribunal, Bangalore in the case of Arasina Hotels Ltd. vs. Dy. CIT (1997) 57 TTJ (Bang) 701 : (1997) 60 ITD 667 (Bang) wherein it is held that-"It is true that both the above decisions relate to issue notice under s. 148 but the principle laid down is applicable to the facts of the case on hand. Here, the AO has issued a notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Hon'ble High Court has observed that-"It goes without saying that the Departmental authorities are bound by the circulars issued by the CBDT. In these circumstances, it is not open to the Revenue to contend otherwise. These circulars are explanatory. They give contemporaneous exposition of the legal position. Even otherwise, on a plain reading of this section and the proviso, it is more than abundantly clear that the proviso prescribes a mandatory period of limitation in the light of scheme of assessment wherein the majority of returns are required to be accepted without scrutiny and only certain returns are taken up for scrutiny." 8. On the other hand, the learned CIT-Departmental Representative argued that the notice under s. 143(2) was despatched on 25th Oct., 2004 through speed-post and normally 2 or 3 days are taken for service by speed post. On 30th and 31st. Oct.., 2004 being Saturday and Sunday and were not working days, therefore, the notice was served on 1st Nov., 2004. In support of his contention, he filed photocopy of EMS speed-post receipt under the BNPL Booking Journal dt. 25th Oct.., 2004. He further argued and referred s. 10 of the provisions of General Cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2007) 212 CTR (Del) 554 : (2007) 165 Taxman 95 (Del) wherein it was held that-"In terms of s. 27 of the General Clauses Act, if a notice is properly addressed and despatched through registered post, there is presumption that it has been served on assessee. Further, the assessee was right in contending that the presumption was rebuttable, but on the facts of the instant case, the assessee had not been able to rebut the presumption." In the instant case, there is no dispute about the service of notice and the dispute was only in regard to the service of notice beyond the statutorily prescribed time. The learned Departmental Representative further placed reliance on the decision of Delhi High Court in the case of CIT vs. Madhsy Films (P) Ltd. (2008) 216 CTR (Del) 145 : (2008) 6 DTR (Del) 93 : (2008) 301 ITR 69 (Del) wherein it is held that-"Sec. 27 of General Clause Act, 1897, provides that service by post is deemed to have been effected by properly addressing, pre-paying and sending by registered post, a letter, containing the notice required to be served. Unless the contrary is proved, the service is deemed to have been effected at the time when the letter would be delivered in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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