Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

Sumanglam Sewa Awam Educational Samiti Versus ACIT Range-2, Ghaziabad

Reopening of assessment - non serving of notice - Held that:- No hesitation in holding that there has been no valid service of notice under section 148 of the Act upon the assessee as the same was neither tendered to the assessee or his agent, nor the same was refused by either of them.

On the facts of the case and respectfully following the ratio of judgment laid down by the Hon’ble High Court of Delhi in the case of CIT Delhi – IV vs. Hotline International (P) Ltd (2007 (4) TMI 44 - .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

llant : Shri Salil Aggarwal, CA, Shri Shailesh Gupta, CA For the Respondent : Shri Sujit Kumar, Sr. DR ORDER Per Bench ITA No. 1467/Del/2011 arises from the order of learned Commissioner of Income Tax (Appeals), Ghaziabad dated 17.01.2011 for the Assessment year 2003- 04, wherein the appeal of the appellant was partly allowed on merits. The assessee has taken as many as 14 grounds in this appeal before us but the main grievance of the assessee is contained in ground no. 4 which reads as under: T .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

loose paper (marked as Page No 89 of Annexure D-3) was found which showed that certain payments had been made by one Shri Vijay Gupta and another Shri JK Gulati to Shri Satish Kumar, Secretary of the assessee society. The amount pertaining to AY 2003-04 was ₹ 33,15,100/- which according to AO was the undisclosed income having escaped assessment u/s 147 r.w.s. 148 of the Income Tax Act, 1961. Notice u/s 148 was issued on 26.03.2007 and was served upon the assessee through affixture on 16.04 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

admitting of this additional ground. However, in view of the decision of the Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. Vs. CIT 229 ITR 383 (SC), we are of the opinion that the assessee is entitled to urge question of law on the basis of facts already available on record. We also rely on the decision of the Hon ble Supreme Court in the case of Jute Corporation of India Ltd. v. CIT [1991] 187 ITR 688, wherein it was held that in the absence of any statutory provision .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n in order to correctly assess the tax liability of an assessee. We accordingly, allow this additional ground to be admitted. 4. The Learned AR for the assessee submitted that a perusal of the notice dated 26.03.2007 allegedly issued under section 148 of the Act (placed at 61 of the paper book), would reveal that the said notice has not been issued at the correct address, as the address mentioned on the said notice is not the address of the appellant trust and further, down below in the said not .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

assessee. He submitted that when the officials of the Income-tax Department went to serve the notice under section 148, the servant (not of assessee, as the notice was not sent at the address of assessee - appellant) refused to accept the notice. The Learned AR submitted that the servant here, by no stretch of imagination can be said to be the agent of the assessee and thus, admittedly, no notice was tendered either to the assessee or his agent nor was the same refused either by the assessee or .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ding himself from authorities for purpose of avoiding service or that there were other good reasons to come to the conclusion that summons could not be served in the ordinary way. The Learned AR submitted that the said process had not been exhausted or carried out by the AO in the instant case and as such, the service of notice by affixation is bad in law. The Learned AR placed reliance on the decision of the Hon ble Delhi High Court in CIT, Delhi - IV vs Hotline International (P) Ltd. 296 ITR 3 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ner of Income-tax v. S. Khader Khan Son [2008] 300 ITR 157 (Mad) 5.1 He further submitted that the information is not backed by any evidence. 5.2 He raised number of other contentions which we would be dealing, if necessary, in our findings. Shri Salil Aggarwal also made statements on merit and raised contentions with which we would deal, if necessary. The Ld. DR Shri Sujit Kumar on the other hand controverted the statement of the assessee. Ld. DR submitted that notice was issued to the assessee .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

to take service of the notice. Because of assessee s conduct with a criminal mind, the department was forced to serve the notice by affixture. He argued that the service was valid. 5.3. Both on the issues of reopening as well as on merits, he strongly opposed the contentions of the assessee. We would be dealing with the same, if necessary. Both parties agreed that the issues for the assessment year 2004-05 are identical to the issues that arise for the assessment year 2003-04 and hence the argu .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

issions and have perused the facts on record. Undisputedly, notice u/s 148 was issued on 26.03.2007 and was served upon the assessee through affixture on 16.04.2007. This fact has been recorded by the AO also on Page 2 of the Assessment Order. There is no other evidence on record to even suggest that efforts were made earlier to serve the notice on the assessee. The short question which arises for consideration in this case is as to whether notice under section 148 of the Act has been duly serve .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r shall serve on the assessee a notice requiring him to furnish within such period, as may be specified in the notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Act has to be served on the person named therein either by post or as if it were a summon issued by Court under the Code of Civil Procedure. Order V, Rule 12 of the Code of Civil Procedure 1908 provides that wherever it is practicable, service shall be made on defendant in person or on his agent. The relevant provision reads as under:- "Rule 12. Service to be on defendant in person when practicable, or on his agent.-Wherever it is practicable, service shall be made on the defendant in perso .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

using all due and reasonable diligence, cannot find the defendant (who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time), and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

mons for service by post in addition to personal service. It reads as under:- "Rule 19A. Simultaneous issue of summons for service by post in addition to personal service.-(l) 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, acknowledgement due, addressed to the defendant, or his agent empowered to accept the service, at the place where .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

orsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant: Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgement due, the declaration referred to in this sub-rule be made notwithstanding the fact t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hem to make and do such appearances, applications and acts on behalf of such parties; (b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts. " 8. Thus a bare reading of the provi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

aid to be the agent of the assessee and admittedly no notice was tendered either to the assessee or his agent nor was the same refused either by the assessee or his agent. Under Order V, Rule 17 of the Code of Civil Procedure, the affixation can be done only when the assessee or his agent refuses to sign the acknowledgement or could not be found. Here, in the present case, it is very much apparent from the records that no effort was made by the Income-tax Department to serve the notice upon the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

a notice under the Act is to be served either by post or as if it was summon under the Code of Civil Procedure, 1908. In the present case, admittedly, notice was never sent by post. So the question arises whether the service was effected in accordance with the provisions of Civil Procedure Code. The relevant provisions of the service of summons under the Code of Civil Procedure are contained in Order V Rules 12 to 20. Rule 12 provides that service shall be made on the defendant in person whereve .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ent or such other person as aforesaid refused to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t where a summon is returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summon has been duly served or order such service as it thinks fit. At this stage, the attention is .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     Latest Happenings     ↓  

Article: SERVICES UNDER REVERSE CHARGE UNDER GST REGIME

Forum: Duty Drawback & Input Credit - under GST

Forum: Excise duty credit on finished stock at additional place of business.

Forum: Credit on Repair of Company Car & Its Insurance

Highlight: Rate of exchange of conversion of the foreign currency with effect from 22th September, 2017 - Notification

Highlight: Companies (Acceptance of Deposits) Second Amendment Rules, 2017 - Notification

Highlight: Implementing Electronic Sealing for containers by exporters under self-sealing procedure prescribed by Circular 26/2017-Cus dated 1st July, 2017 and Circular 36/2017 dated 28 th August, 2017. — reg. - Circular

Highlight: Amendment to Paragraph 2.72 (b) of the Handbook of Procedures of the Foreign Trade Policy (FTP) 2015-20 - Public Notice

Notification: Amendment in Appendix 3 (SCOMET items) to Schedule- 2 of ITC (HS) Classification of Export and Import Items 2012

Circular: Amendment to Paragraph 2.72 (b) of the Handbook of Procedures of the Foreign Trade Policy (FTP) 2015-20

Notification: Companies (Acceptance of Deposits) Second Amendment Rules, 2017

Notification: Rate of exchange of conversion of the foreign currency with effect from 22th September, 2017

Forum: Trans1 return

News: Exchange Rate of Foreign Currency Relating To Imported and Export Goods Notified

Circular: Promote the officers of the Indian Revenue Service (Customs and Central Excise) to the grade of Principal commissioner of customs, GST & CX

Circular: Allocate the charges amongst the Members of the Central Board of Excise and Customs

Circular: Strategy for audits in 2017-18 consequent to GST - Audit by Central Excise and service Department to continue for the accounting year 2016-17 and for the past period

Circular: Appoint the IRS (C&CE) officers as Principal Commissioner (Revision Application) and ex-officio Additional Secretary

Circular: Time limit for filing intimation for composition levy under Rule 3(1) of the CGST Rules, 2017 extended to 16-8-2017

Circular: Extension of time limit for submitting the declaration in FORM GST TRAN-1 under rule 120A of the Central Goods and Service Tax Rules, 2017

Circular: C.B.E. & C. Advisory on Customs related matters on introduction of Goods and Services Tax regime

Circular: List of Reduced Tax Liabilities under GST regime in comparison to present combined Indirect Tax rates

Circular: Works Contract for construction of Flats, Complex — Builders to pass on GST benefit to buyer otherwise anti-profiteering provisions of Section 171 of GST Act to apply

Circular: Clarification regarding applicability of section 16 of the IGST Act, 2017, relating to zero rated supply for the purpose of Compensation Cess on exports – Regarding.

Circular: Clarification on Inter-state movement of various modes of conveyance, carrying goods or passengers or for repairs and maintenance- regarding

News: RBI Reference Rate for US $

Highlight: Addition u/s 23(1)(a) - deemed rent - once the property is let out and at any point of time this remained vacant during the same cannot be brought to tax under the head House properties income.

News: Haryana constitutes screening committee on anti-profiteering

Highlight: Valuation of imported goods - it is necessary to re-examine the matter of both license agreement as well as supply contract simultaneously, to see if the enhanced royalty was in the guise of adjustment of the price of components.

Notification: Levy of anti dumping duty on New/unused pneumatic radial tyres with or without tubes and/or flap of rubber (including tubeless tyres) having normal rim dia code above 16 originating in, or exported from China PR

Highlight: Cenvat credit availed on Club Membership for the Director is not admissible as it cannot be said to be remotely connected with the activity of manufacture

Circular: Amendments in Hand Book of Procedures 2015-20 –reg.

News: Jaitley asks biz not to wait till last day to file GST returns

Circular: Implementing Electronic Sealing for containers by exporters under self-sealing procedure prescribed by Circular 26/2017-Cus dated 1st July, 2017 and Circular 36/2017 dated 28 th August, 2017. — reg.

Article: 20 Things You must know about E Way Bills in GST Law

Article: ‘DUTY DRAWBACK’ CANNOT BE EQUATED WITH ‘REBATE OF DUTY’

Highlight: Notification regarding GST rate for branded cereal, pulses and flour

News: Notification regarding GST rate for branded cereal, pulses and flour

Highlight: Anti-dumping duty on import of bus/truck tyres from China

Highlight: Cabinet approves Extension of time period of the Scheme "Special Industry Initiative for J&K" (Sll J&K) - Udaan

Highlight: Non-payment of service tax - maintenance and repair charges - appellants had knowingly and deliberately shown the repair charges as job work charges to mislead about their taxability - demand confirmed.

Highlight: BAS - execution of the project of smart card for vehicle registration – implementing the SOC-VRC project - The fact that the Government has outsourced some part of the work and paid certain consideration for such outsourced work, does not make the activity subject to service tax.

News: Cabinet approves Extension of time period of the Scheme "Special Industry Initiative for J&K" (Sll J&K) - Udaan

Highlight: Constitution of National Anti-profiteering Authority (NAA) under GST-reg. - Trade Notice

Highlight: Amendments in Hand Book of Procedures 2015-20 –reg. - Various amendments are made in Chapter-4 of Hand Book of Procedures 2015-2020.

Circular: Constitution of National Anti-profiteering Authority (NAA) under GST-reg.

Highlight: Sharing of expenses - BAS - promotion of business of group companies - sharing of expenditure for common facilities cannot be treated as service by one to another in such arrangement.

News: RBI Reference Rate for US $

Article: Credit of unsold stock [Section 140(3)] - Actual Credit as well as Notional Credit - Part-I - GST Transitional provisions

Circular: Certain Clarifications sought on Construction Services provided in the Real Estate Sector – reg.



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version