9911796707
TMI Blog2008 (5) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... rd 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 legally correct in holding that Sri G.K. Lath, chartered accountant possessed 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 time stipulated period of one year ?" 4. The brief facts of the case giving rise to the present appeal are as follows : The appellant is a private limited company incorporated u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 accountants is not only company auditor of the appellant-company but also representing the appellant in the assess-ment proceedings not only in the assessment year 2000-01 but in ear-lier years also. It is pertinent to mention here, that in the assessment proceedings for the assessment year 2000-01, Shri Dinesh Singh, chartered accountant represents the assessee-company in the assess-ment proceedings, who is one of the partners of M/s. A. Sachdeva and Co. 8.4 . . . in the case of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ource, 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 no sum is payable by the assessee or no refund is due to him : Provided further that no intimation under this sub-section shall be sent after the expiry of one year from the end of the financial year in which the return is made : Provided also that where the return made is in respect of the income first assessable in the assessment year commencing on the 1st day of April, 1999, such intimation may be sent at any time up to the 31st d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 person who received the notice. Thus, treating Sri G. K. Lath as authorised person and the agent of the assessee, the notice was served by the process server on Sri G. K. Lath, therefore, the service of notice on him was in accordance with law. He further submitted that Sri G. K. Lath, chartered accountant represented the assessee in the assessment proceeding in the previous years. 9. Having heard the learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and addres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Lath possessed requisite authority to receive the notice. The Tribunal has not considered Order V, rule 12 of the Code of Civil Procedure, which contemplates the service of the summons referred to hereinabove. 20. Moreover, the assessee has not disputed the service of the notice before the assessing authority and raised this issue for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
