TMI Blog2014 (12) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... bed time limit - nothing is coming from record as to when this notice was served upon the assessee - The another notice issued u/s 143(2) dated 17.9.2010 which was served upon the assessee was admittedly beyond the prescribed time limit provided under the proviso to Section 143(2) of the Act - service of notice issued u/s 143(2) within the prescribed time limit is mandatory and condition precedent to proceed for framing of assessment u/s 143(3) - 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 CIT Vs. Vardhaman Estates (P) Ltd. [2006 (9) TMI 128 - DELHI High Court] it was held that in a case of service of notice u/s 143(2), the date of dispatch of notice is not deemed date of service and that where there was no material to suggest that the notice sent by speed post was served on any earlier date than that contended by the assessee, the assessment was not valid on the ground of limitation - the provisions laid down u/s 292BB of the Act regarding deeming of validity of a notice in certain circumstances are not helpful to the revenue as the proviso thereto extends she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 letter dated 20.7.2010 addressed to the Ld. CIT(A) requesting therein for permission to raise additional ground that the assessment order passed on 29.12.2009 is wrong on facts and erroneous on the point of law as contrary to the provisions of law contained u/s 143(2) (ii) proviso of the Income Tax Act, 1961, hence, illegal as barred by time limitation. At page no. 53-60 of the paper book has been placed a copy of written statements filed by the assessee before the Ld. CIT(A) raising issue of validity of service of notice u/s 143(2) of the Act also mentioning therein about the objection raised by the assessee i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 a summons issued by Court under the Code of Civil Procedure. Section 282 of the IT Act as effective on the date of issue of notice as on 17.9.2009 deals with the service of notice in general. For a ready reference the provisions laid down therein are being reproduced herein :- 282. Service of notice generally. (1) A notice or requisition under this Act may be served on the person therein named either by post or as if it were a summons issued by a court under the Code of Civil Procedure, 1908 (5 of 1908). (2) Any such notice or requisition may be addressed (a) in the case of a firm or a Hind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision 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 provided in Rules 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgment due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain: Provided that nothing in this sub-rule shall require the Court to issue a summons for service by registered post, where, in the circumstances of the case, the Court considers it unnecessary. (2) When an acknowledgment purporting to be sign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 case was filed on 30.11.2007 which was initially processed u/s 143(1) of the Act. Thereafter the case was selected for scrutiny and the first notice u/s 143(2) of the Act stated to be dated 17.9.2008 was claimed to be issued through speed post on 19.9.2008 which was never served upon the assessee. Nothing is coming from record as to when this notice was served upon the assessee. The another notice issued u/s 143(2) dated 17.9.2010 which was served upon the assessee was admittedly beyond the prescribed time limit provided under the proviso to Section 143(2) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereafter 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 been served upon the assessee. It is only a presumption that notice which have been sent by speed post on 30th October, 2002 must have delivered to the assessee by 31st October, 2002. There is no presumption under the law that any notice sent by speed post must have been delivered to the assessee within 24 hours. 17. Moreover, there is nothing on record to show as to on whose instance the notice was re-directed and sent at the address of Noida. The Hon ble High Court accordingly, come to the conclusion that no notice u/s 143(2) of the Act which is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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