TMI Blog2011 (5) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... filed appeals before the Tribunal. The Tribunal dismissed the appeal filed by the revenue and allowed the appeal filed by the assessee. The Tribunal recorded that the service of notice u/s 148 was not valid and, consequently, the assessment order was annulled. Hence, the present appeal by the revenue. HELD THAT:- It is not disputed that in the return which was filed by the assessee, it was mentioned that the same was filed in response to notice u/s 148. No objection regarding valid service of notice was raised before the AO. Once that is so, the argument of the assessee that there was no valid service of notice u/s 148 fails. The Tribunal was, thus, in error in concluding otherwise and holding the proceedings to be invalid. Suf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, it was not correct in quashing the assessment orders on the said grounds? (ii) Whether assessment order can be termed invalid merely by the reason of any mistake or omission in service of notice when Section 292B of I.T. Act, 1961 states that if the proceeding is in substance and effect in conformity with or according to the intent and purpose of I.T. Act, 1961, the assessment proceedings cannot be termed invalid merely by reason of any mistake, defect or omission in the notice? 3. Briefly stated, the facts necessary for adjudication as narrated in the appeal are that the assessee filed return on 26.11.1998 declaring nil income after adjusting brought forward losses of ₹ 8671/-. The said return was processed under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deleted the addition of ₹ 43,08,570/- made on account of undisclosed income in servicing of vehicles. Being not satisfied, the assessee as well as the revenue filed appeals before the Tribunal. The Tribunal vide order dated 6.7.2007 dismissed the appeal filed by the revenue and allowed the appeal filed by the assessee. The Tribunal recorded that the service of notice under Section 148 of the Act was not valid and, consequently, the assessment order was annulled. Hence, the present appeal by the revenue. 5. We have heard learned counsel for the parties. 6. Learned counsel for the revenue submitted that the notice issued under Section 148 of the Act was validly issued on 12.3.2003 and was duly served through affixation on 23.3.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itten that the return was filed in response to the notice issued under Section 148 of the Act. Learned counsel for the revenue placed reliance on a Division Bench judgment of this Court in Hind Samachar Limited v. Union of India and others [2011] 330 ITR 266 (P H) to submit that the technical defects would not make the assessment order invalid merely by reason of any mistake, defect or omission, if such return in substance and effect is in conformity with or according to the intent and purpose of the Act. 7. On the other hand, learned counsel for the assessee supported the order passed by the Tribunal. He submitted that the defect in the service of notice was jurisdictional defect which was not curable in terms of Section 292B of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall apply where the assessee has raised such objection before the completion of such assessment or reassessment. 11. A presumption has been raised under the said provision relating to service of notice upon the assessee in respect of assessment or reassessment proceedings. According to this provision, where an assessee appears in any proceedings or cooperates in any enquiry relating to assessment or reassessment proceedings, it shall be presumed that the assessee has been validly served and it shall not be open to the assessee to object that the notice was not served upon him or was not served in time or was served upon him in an improper manner. However, an exception to the aforesaid presumption has been made in a case where such obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dity of assessment proceedings etc. In other words, minor defects or irregularities in the circumstances aforesaid, would not negate the validity of the proceedings initiated by the assessing officer and the assessee would not be able to raise technical or venial defects in this regard. 13. It is not disputed that in the return which was filed by the assessee, it was mentioned that the same was filed in response to notice under Section 148 of the Act. No objection regarding valid service of notice under Section 148 of the Act was raised before the assessing officer. Once that is so, the argument of the assessee that there was no valid service of notice under Section 148 of the Act fails. The Tribunal was, thus, in error in concluding ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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