TMI Blog2008 (5) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... sessed the requisite 'authority' to receive the notice under section 143(2) on behalf of the assessee and in rejecting the assessee's plea against the validity of assessment on the ground of non-service of notice under section 143(2) within the stipulated period of one year ? 2. Whether the view taken by the Income-tax Appellate Tribunal in the matter of service of notice dated November 21, 2001, is not viti-ated in law by the reason of non-consideration of relevant material and information as was placed on record and as had been specifically referred to during the course of hearing of appeal ? 3. Whether on the facts and circumstances of the case, it can be validly held that the Revenue had discharged its onus of proving ser-vice of jurisdictional notice under section 143(2) within the stipulated period of one year and in upholding, in principle, the validity of assessment order dated March 28, 2003 ?" 2. Heard Sri S. K. Garg, learned counsel for the appellant and Sri D. D. Chopra, learned senior standing counsel, appearing on behalf of the Revenue. 3. At the time of hearing the appellant has pressed the following question only : "1. Whether the Tribunal was le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x (Appeals) has dealt with the issue and decided against the appellant. It transpires that the first notice under section 143(2) of the Act was issued on November 21, 2001, addressed to the company and was served on one Sri G. K. Lath, chartered accountant sitting in the business premises. The record reveals that a sec-ond notice dated December 2, 2001 was also issued but it was beyond the stipulated time. The Commissioner of Income-tax (Appeals) held the ser-vice of the first notice dated November 21, 2001 on Sri G. K. Lath, char-tered accountant as a valid service. The view of the Commissioner of Income-tax (Appeals) has been confirmed by the Tribunal. The Tribunal held as follows : "It is in the said factual background that the learned Commissioner of Income-tax (Appeals) has recorded the following findings : '8.2 The perusal of the report shows that the notice dated Novem-ber 21, 2002 issued under section 143(2) was served on Shri G. K. Lath, chartered accountant, auditor of the company present in the business premises of the assessee. Shri G. K. Lath, chartered account-ant is one of the partners of the firm M/s. A. Sachdeva and Co. and this firm of chartered accountant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alid on this ground. Accordingly, we uphold the validity of the assessment order dated March 28, 2003, in principle." 6. Section 143(1) and (2) of the Act, as they stood at the relevant time, are reproduced below : "143. (1) Where a return has been made under section 139, or in response to a notice under sub-section (1) of section 142,- (i) if any tax or interest is found due on the basis of such return, after adjustment of any tax deducted at source, any advance tax paid, any tax paid on self-assessment and any amount paid otherwise by way of tax or interest, then, without prejudice to the provisions of sub-section (2), an intimation shall be sent to the assessee specifying the sum so payable, and such intimation shall be deemed to be a notice of demand issued under section 156 and all the provisions of this Act shall apply accordingly ; and (ii) if any refund is due on the basis of such return, it shall be granted to the assessee and an intimation to this effect shall be sent to the assessee : Provided that except as otherwise provided in this sub-section, the acknowledgment of the return shall be deemed to be an intimation under this sub-section where either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an take it that the return filed by him has become final and no scrutiny proceedings are to be started in respect of that return. He submitted that in the present case, the notice was issued on November 21, 2001, which is claimed to have been served within the period pre-scribed under the proviso to section 143(2) of the Act on one Sri G. K. Lath, chartered accountant was not in accordance with law. He submitted that admittedly, the notice was not sent by post, therefore, as per section 282 of the Act, notice was to be served as summons issued under the Code of Civil Procedure. He submitted that Sri G. K. Lath was neither the employee nor the authorised agent and, therefore, the serve of notice on him was not in accordance with law. He further submitted that it is not clear from the perusal of the order of the Tribunal on which basis the Tri-bunal has recorded the finding that Sri G. K. Lath possessed the requisite authority. 8. Sri D. D. Chopra, learned senior standing counsel submitted that the notice dated November 21, 2001 was served by Sri Munna, process server on Sri G. K. Lath sitting in the business premises of the assessee who rep-resented himself to be an authorised p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce shall be made on the defendant in person or on his agent. The relevant provision reads as under : "12. Service to be on defendant in person when practicable, or on his agent.-Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient." 15. Order V, rule 17 of the Code of Civil Procedure lays down the procedure when the defendant refuses to accept service, or cannot be found and it reads as under : "17. Procedure when defendant refuses to accept service, or cannot be found.-Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant (who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no like-lihood of his being found at the residence within a reasonable time), and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r : "2. Recognised agents.-The recognised agents of parties by whom such appearances, applications and acts may be made or done are,- (a) persons holding power-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such par-ties ; (b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, no other agent is expressly authorized to make and do such appearances, applications and acts." 18. Learned standing counsel provided the report of the process server, which reads as follows : * * * * * * * * *# 19. From the perusal of the order of the Tribunal it is not clear that on which basis the Tribunal has recorded the finding that Sri G. K. Lath possessed requisite authority. In this view of the matter, we are of the view that the matter requires reconsideration by the Tribunal. The Tribunal being the fact finding authority should examine the material on record and give basis for coming to a conclusion that Sri G. K ..... X X X X Extracts X X X X X X X X Extracts X X X X
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