TMI Blog2012 (9) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee : Shri Navin Gargh, Advocate For Revenue : Shri A.K. Sharma, Jr. D.R. ORDER This appeal by the assessee is directed against the order of ld. CIT(A)-II, Agra dated 09.02.12 for the assessment year 1997-98, challenging the order of the ld. CIT(A) in dismissing the appeal of the assessee with regard to the service of notice u/s. 148 of the IT Act. 2. The facts of the case are that earlier, the matter in issue traveled to the ITAT, Agra in ITA No. 23/Agra/2006 and vide order dated 11.06.2007, the assessee s appeal was allowed for statistical purposes on this issue. The findings of the Tribunal in para 7 is reproduced in the impugned order, which reads as under :- 7. The said notice is claimed to have been sent by speed post along with number of other assessees totaling to 13 and an acknowledgement dated 27.03.2004 has been obtained from Sanjay Place Post Office, Agra. Against the assessee s name, Shri Shyam Lal Agarwal, Agra, receipt no. 112 has been mentioned. When the assessee s counsel was confronted with the acknowledgement, he contends that this speed post booking list does not contain the address of the assessee. It, therefore, cannot be inferred that the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repeated the same contention and it was submitted that when the assessee s counsel was confronted with the acknowledgement, he had contended that the speed post booking list did not contain the address of the assessee and no proper enquiry has been made and the assessee repeatedly denied the service of notice u/s. 148. The assessee also relied upon certain decisions before the ld. CIT(A). However, the ld. CIT(A) did not accept the contention of the assessee and dismissed the appeal of the assessee. His findings in para 5 and 6 of the appellate order are reproduced as under : 5. I have considered the rival contentions and find that from the acknowledgement dated 27.03.2004 of the Post office, Sanjay Place, Agra it is clear beyond doubt that the letter containing the notice u/s. 148 was sent to the appellant. From the office copy of the notice as available in assessment folder it is also clear that the notice was properly addressed which fact has been acknowledged by the Hon ble ITAT in its order in para no.6. There is no reason to presume that the address was not mentioned correctly on the envelop. The letter containing the notice has also not been received back. As per section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is also not in dispute that the notice u/s. 148 was issued to the assessee on 27.03.2004 through speed post and the same did not return back to the Revenue Department. The Tax Assistant gave report to the same effect that undelivered envelop was not received back from postal department. The postal authorities have shown their inability to give further information in this regard. It is, therefore, admitted fact that proper notice u/s. 148 was issued at the correct address of the assessee and was also dispatched through speed post to the assessee. The speed post cover containing the notice u/s. 148 did not return back to the Revenue Department. It is, therefore, clear that the notice u/s. 148 was properly issued to the assessee. 6.1 Hon ble Delhi High court in the case of CIT vs. Shanker Lal Ved Prakash, 300 ITR 243 held Held, allowing the appeal, that the notices under section 143(2) were undisputedly dispatched on August 25, 1998; the assessee had acquiesced to the statement that this envelope had reached Civil Lines Post Office on the next day itself. August 25, 1998, fell on a Tuesday. Despite the assertion that the envelope had reached the Civil Lines Post Office on Aug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied upon an affidavit filed for the first time by the assessee before it in which the assessee denied receipt of the notice dated October 9, 1998. The Tribunal concluded that since the assessee had, by filing the affidavit, rebutted the presumption of service, the burden shifted on to the Revenue to show, by reference to the postal record, that the notice was in fact duly served on the assessee. It was held that the burden had not been discharged by the Revenue. On appeal : Held, that according to the Revenue, a notice under section 143(2) of the Act dated October 9, 1998, was sent to the assessee through registered post on October 13, 1998. The said notice was not received back undelivered. The assessee received a notice dated February, 28, 2000, on March 1, 2000, and in compliance with that notice, the Manager (Finance) along with the General Manager (Finance) of the assessee attended the proceedings before the Assessing Officer on March 7, 2000. The assessee had come to know of the notice dated October 9, 1998, because it raised a plea before the Commissioner (Appeals) that it was not served with any notice within the prescribed time. Despite this, no objection was taken befo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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