TMI Blog2015 (8) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... suance of notice u/s 143(2) is an empty formality inspite of the legal position on this statutory mandate, then it throws a very public glare on the “serious malaise” which the tax administration can be said to be infected with and in such a situation also we are confident that the Competent Authority in the Department would be equally concerned to address the situation and send out correct signals at the earliest point of time. Having expressed our anguished dissatisfaction with the reasoning arrived at in the impugned order, the impugned order is set aside and the issue is restored back to the file of the CIT(A) with the direction to decide the same after giving the assessee a reasonable opportunity of being heard by way of a speaking order in accordance with law. The finding on merits is also set aside as first as per settled legal principles the CIT(A) shall decide the Jurisdictional issue and then proceed to decide the appeal on merits if so warranted on facts. - Decided in favour of assessee for statistical purposes. - I.T.A .No.-1377/Del/2013 - - - Dated:- 7-8-2015 - SMT DIVA SINGH AND SH. J.S.REDDY, JJ. For The Appellant : Sh. Santosh Agarwal, CA For The Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an afterthought and AR has raised this objection to derail the assessment proceedings. 2.1. Thereafter considering the material available on record addition ₹ 1,73,493/- was made by way of disallowing the loss claimed under the head House Property and addition of ₹ 10,20,000/- was made by way of disallowing the claim of House Rent Allowance u/s 10. Accordingly the assessment was completed at an income of ₹ 12,36,000/-. 3. Aggrieved by this, the assessee went in appeal before the CIT(A). The assessee again challenged the proceedings on the ground that notice u/s 143(2) had not been issued. Reliance was placed upon the following decisions so as to canvass that the proceedings for want of issuance of notice u/s 143(2) deserved to be dropped:- (i) CIT vs Vardhman Estate Private Ltd. [2006] 287 ITR 368 (Del.); (ii) BHPE Kinhill Joint Venture vs Additional Director of Income Tax, Range-1; (iii) Raj Kumar Chawla vs ITO (ITAT, Del.); (iv) Lally Jacob vs ITO [1992] 197 ITR 439 (Ker.) 3.1. Apart from that reliance was further placed on the following decisions:- (i) Tulika Mishra vs JCIT Spl.Range-23, Now CIT 6(1), New Delhi; (ii) Aegis Chemi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement the proceedings should be quashed. 5.2. Referring to the record it was re-iterated that when the CIT(A) accepts that it is not possible to give a positive finding on the issuance of notice u/s 143(2), it leads to the only conclusion that the department is unable to state positively whether service has been effected or not thus where service is disputed by the assessee and the department accepts that it is not possible to monitor whether it was served or not then relying upon the decision the proceedings deserve to be quashed. 6. The Ld. Sr. DR, Ms. Y.Kakkar relying upon the assessment order submitted that on facts there is a categoric finding in the assessment order that notice has been issued on 12.08.2009 at the correct address and it has not come back unserved. In these circumstances, it was her submission that the AO taking note of the fact that the objection was posed only on 21.04.2010 has correctly come to the conclusion that it was an after thought. 6.1. Referring to the impugned order in the context of the arguments made by the Ld. AR, it was her request that the issue may be sent back to the file of the CIT(A) as the findings in the second half of the penul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earnest plea that an opportunity in good faith be granted to address the situation as the Tribunal as per settled legal principles always has the inherent powers to take corrective actions wherever the situation in facts and law warrants such an action. It was her submission that the Tribunal vested with all the inherent powers under the Act to set right what patently and evidently is an error in fact and law may in the facts of the present case exercise the inherent powers. 7. We have heard the rival submissions and considered the material available on record. On a consideration thereof, we find that on the face of it, the issue which arises for consideration appears to be a simple question of fact namely was the notice u/s 143(2) served upon the assessee or not. The question if answered in favour of the assessee has legal consequences necessitating as per settled legal principles the quashing of the proceedings. However the simplicity of the issue on the fact appears to have been complicated by the reasoning given by the Ld. CIT(A). In his wisdom the Ld.CIT(A) instead of deciding the issue raised on facts appears to have utilized the opportunity to either express his personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration of the said decision we find that the departmental stand that the issue is distinguishable made out by the Ld.Sr.DR cannot be faulted with. It is seen that the factum of non-service of notice u/s 143(2) was not based on mere oral statement of the Ld.AR but was supported by a duly sworn affidavit of the assessee which remained unrebutted on record. In fact the Revenue in support of its claim could only produce an empty envelope on which the assessee s name was written. However no address was printed on the same. In these circumstances their Lordships concluded that it was doubtful whether the notice at all had been sent to the assessee. In the facts of the present case we find that there is no affidavit of the assessee on record and the evidence on record has not been cared to be addressed by the Ld.CIT(A) in his wisdom. It may not be out of place to refer that Rule 10 of the ITAT Rules, 1963 mandates that where a fact contrary to record is alleged then the Rule mandates that it should be supported by a duly sworn affidavit which evidently is not on record. In the said factual background, we find that the prayer of the assessee cannot be accepted. We further find that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CBDT who may consider taking appropriate corrective actions at the least that the concerned officers who administer the law not only know the law but also respect the law as appointment of unsuitable persons to these sensitive positions seriously undermines the faith in the capability and fairness of the tax administration which should always remain beyond reproach. If what is concluded by the Ld. CIT(A) is correct then there is no legal mandate for the Revenue to vary the returned income, re-open the concluded assessments etc. It would lay the Revenue open to the unfounded criticism of the tax payers that the fate of the tax payer is open to the arbitrary exercise of power by the tax Department to the detriment of the rights and safety of the tax payer in the face of the perceived authority of the tax department to selectively and mischievously abuse the power under the shelter of the argument that sheer numbers defeat the mandatory exercise. Even if the view expressed is only an opinion based on the personal misreading of the procedure by the Ld. CIT(A) under a mistaken belief that issuance of notice u/s 143(2) is an empty formality inspite of the legal position on this statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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