TMI Blog2012 (3) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... emed to be sufficiently effected if a letter containing the document is properly addressed, prepared and posted by registered post - revenue has sent the notice under Section 143(2) of the Act on a wrong address and not on the address mentioned in the income tax return and has not been able to substantiate by adducing any evidence that any notice under Section 143(2) was issued within the prescribed period of limitation. - ITA No. 85 of 2011 (O&M), ITA No. 287 of 2011 (O&M) - - - Dated:- 1-2-2012 - MR. JUSTICE M.M. KUMAR, MR. JUSTICE ALOK SINGH, JJ. Present: Mr. Vivek Sethi, Advocate, for the appellant-revenue. Mr. Arun Jain, Senior Advocate, with Mr. K.S. Dhillon, Advocate, for the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rebate and discount but commission paid by him to the customers on which no TDS as required under Section 194H of the Act, was deducted and thus, it violated the provisions of Section 40(ia) of the Act (A-1). 4. The assessee-respondent preferred an appeal before the Commissioner of Income-tax (Appeals), Jalandhar, against the order dated 19.12.2008, inter alia, raising the ground that the Assessing Officer has exceeded the jurisdiction under Section 143(2) of the Act because the notice dated 26.10.2007, issued under Section 143(2) of the Act, was sent to an address at which the assesseerespondent was not available. Therefore, no presumption of service of notice upon the assessee-respondent, under Section 143(2) of the Act, within the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g items. On 31.10.2005, a return of income was filed declaring total income at Rs. 1,24,114/-. On 27.9.2006 a survey under Section 133A of the Act was carried out at the business premises of the assessee-respondent and certain incriminating documents were found and impounded. The case was selected for scrutiny as per the instructions of the Central Board of Direct Taxes (CBDT). On 24.10.2006, a notice under Section 143(2) of the Act was issued to the assessee-respondent for hearing on 2.11.2006. The notice is claimed to have been served on the assessee-respondent on 26.10.2006. No one appeared on behalf of the assessee-respondent on 2.11.2006. Later on the proceedings were attended by Shri K. Bhagat, Chartered Accountant along with Shri R.K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... landhar. The Tribunal after extracting the relevant paras of the findings recorded by the CIT(A), sustained the order dated 22.3.2010 and dismissed the appeal of the revenue-appellant vide order dated 15.6.2011 (A-3). 9. Having heard learned counsel for the parties and perusing the paper books we are of the considered view that no substantial question of law arises in these appeals for determination by this Court. The Tribunal has recorded pure findings of facts. In so far as ITA No. 85 of 2011 is concerned, it has come on record that the notice dated 26.10.2007 under Section 143(2) of the Act was sent on a wrong address. Furthermore, the revenue-appellant has not brought on record any evidence showing delivery of the said notice on the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is amongst a condition precedent for inferring service . 11. Similarly, in the other case, the revenue-appellant has not been able to substantiate from the record of the assessment proceedings that any notice under Section 143(2) of the Act was issued on 24.10.2006. It has been categorically observed by the CIT(A) in his order dated 22.3.2010 that the return was processed under Section 143(1) on 23.3.2006 and in the noting of first order sheet no date has been mentioned by the Assessing Officer. The first notice under Section 143(2) of the Act, which is available on the assessment record, is dated 9.11.2006. Therefore, we see no legal infirmity in the view taken by the Tribunal as well as the CIT(A), Jalandhar in both the cases. There i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the addressee to evade the process of receipt of notice, the purpose of the statute will be better served, if the date of issue of notice is considered as compliance of the requirement of proviso to Section 143(2) of the Act. In fact that is the only conclusion that can be arrived at to the expression serve appearing in Section 143(2) of the Act. 13. However, we are of the considered view that the Division Bench judgment in the case of V.R.A. Cotton Mills (P) Ltd. (supra) is totally distinguishable on the facts of the present cases because it has been established that in one case the revenue-appellant has sent the notice under Section 143(2) of the Act on a wrong address and in the other case the revenue-appellant has not been abl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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