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TMI Blog2014 (12) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 143(2) of the Act. It was pointed out in that letter that the notice has been served upon the assessee using the address as FG-67-C, Vikas Puri, New Delhi which was not the correct address and the correct address of the assessee's company is 152, 2nd Floor, Sarai Julena, New Delhi- 110092 from last several years which is also proved from the facts that (I) the same address is available in the ITD Data Base on the Website of the department, the assessee has been filing its income tax return mentioning the same address from the assessment year 2006-07 till date and for the assessment year 2007-08 and the correspondences relating thereto were also made on the said address of the assessee at Sarai Julena, as mentioned above. He also referred different relevant documents filed in the paper book by the assessee. 5. A copy of the above stated letter dated 18.11.2009 has been made available at page no. 63 and 64 of the paper book filed on behalf of the assessee. At page no. 65, 66 has been placed the copy of the return filed for the assessment year under consideration showing the address at Sarai Julena. At page no. 61-62 of the paper book has been made available the copy of lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice u/s 143(2) was issued on 17.9.2008 at the head office of the assessee i.e. FG-67-C, Vikaspuri, New Delhi through speed post dated 19.9.2008. He submitted that as per PAN data base, the above said address at Vikaspuri still exist as Head Office of the assessee. In support, he furnished a copy of PAN Data Base. The Ld. DR submitted that the above decision of Hon'ble Delhi High Court relied upon by the Ld. AR is having distinguishable facts, hence, it is not helpful to the assessee. He submitted further that since the notice u/s 143(2) was sent through speed post dated 19.9.2008 it was presumed that it was served upon the assessee, well within prescribed time limit under proviso to section 143(2) of the Act. The Ld. DR has also referred the provisions laid down under Section 292 BB of the Act. 8. Having gone through the above submissions as well as relevant provisions laid down u/s 282 of the IT Act and Code of Civil Procedure, 1908 as amended by the Code of Civil Procedure (amendment) Act, 2002 with effect from 1.7.2002, we find that as per section 282 of the Act any notice under the Income Tax Act has to be served on the person named therein either by post or as if it were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has made any rules providing for the addresses to which the communication referred to in sub-section (1) may be delivered or transmitted to the person therein named. However, there is no dispute that any notice under the Income Tax Act has to be served on the person named therein either by post or as if it were a summons issued by the Court under the Code of Civil Procedure. 10. Before the amendment in the Code of Civil Procedure, 1908 from 1.7.2002, there was a procedure of service provided under Rule 19A Order V. As per this procedure laid down therein there was a provision of deeming service in a case where summons were sent by registered post with acknowledgement due on the correct address of the addressee and did not return unserved within 30 days from the date when it was posted or there was no any return of acknowledgement due. It was deemed that the summons have been duly served upon the addressee. For a ready references the said Rule 19A is being reproduced hereunder : "[ 19A. Simultaneous issue of summons for service by post in addition to personal service. - (1) The Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l within the prescribed time limit as per proviso to Section 143(2)(ii) of the Act since after repealing of Rule 19A of order V of Code of Civil Procedure and not in operation during the period there cannot be a presumption of service to agree with the revenue in this regard. Thus, we are of the view that in absence of mentioning of a specific actual date on which the assessee was served upon with the said notice sent on 19.9.2008 it cannot be arrived at a conclusion that the notice was served well within the prescribed time limit. Even in its remand report sent on 13.12.2010 to the Ld. CIT(A) , the AO is silent as to when notice issued under section 143(2) dated 17.9.2008 sent through speed post on 19.2.2008 was actually served upon the assessee. Since the notice was issued on 19.9.2008, thus substituted proviso to section 143(2)(ii) w.e.f. 01.04.2008 (Finance Act, 2008) will be applicable in this case (CBDT circular no. 1 of 2009 dated 27.3.2009 -310 ITR (st.)42). As per this proviso to Section 143(2) (ii) of the Act, no such notice shall be served on the assessee after the expiry of 6 months from the end of the month in which the return is furnished. The return in the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be sustained. 14. The explanation of the revenue remained that the notice u/s 143(2) was issued on 29.10.2002 and was sent by speed post on 30.10.2002 and was received at the given address of the assessee on 31.10.2002. Thereafter at the instance of the AO it was redirected at the address of Noida so notice in question has been served upon the assessee within the prescribed period. 15. Considering the material available on record the Hon'ble High Court was pleased to observe that the notice in question has been dispatched on 30.10.2002 and thereafter it has been re-directed to the Noida address of the assessee. There is nothing on record to show as to on which date this notice was received at the given address of the assessee and on which date the same was re-directed. In his comment in response to the direction of Ld. CIT(A) placed on record, the AO vide its letter dated 12/20 October, 2004 had commented that the notice was served by speed post which must be delivered to the assessee within 24 hours, i.e., by morning of 31st October. 16. The Hon'ble High Court, thus, observed that the Assessing Officer is also not sure nor specific as to when the notice in question has be ..... 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