TMI Blog2008 (6) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... ) passed an order on 30th Sept., 2005 and the appeals before us emanate from this order. 2. Ground No. 6 of the appeal of the assessee is preliminary in nature. It is mentioned that the learned CIT(A) erred on facts and in law in not quashing the order even though the notice under s. 143(2) of the Act was not served upon the assessee or its Authorized Representative within the statutorily prescribed time. It is mentioned that such an omission constituted jurisdictional default and not merely procedural irregularity. Therefore, he erred in holding that the omission to issue notice as aforesaid could not be the ground for holding the assessment to be null and void. 3. In this connection, it is mentioned by the learned CIT(A) that one of the contentions of the assessee was that since the return of income was filed on 30th Nov., 1996, the notice under s. 143(2) should have been served upon the assessee on or before 30th Nov., 1997. No notice was served till this date. Therefore the order of assessment was null and void. It is further mentioned that remand report was obtained from the AO, who pointed out that a notice under s. 143(2) of the Act was issued on 11th/13th Nov., 1997 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therein that a notice under s. 143(2) of the Act was issued on 11th/13th Nov., 1997 and, therefore, it was not acceptable that the notice was not served on or before 30th Nov., 1997. It is further mentioned that on careful examination of the records, it is found that a notice under s. 143(2) of the Act was issued on 19th Feb., 1999 at the address plot No. 8, HSIDC, Industrial Area, Gurgaon, which has not been returned back. The case of the learned counsel of the assessee was that no proof by way of acknowledgement card or otherwise is available on the record to show that the first notice dt. 11th/13th Nov., 1997 was served on the assessee. Notice dt. 19th Feb., 1999 was forwarded at a wrong address as the address of the assessee was plot No. 2, HSIDC, Gurgaon. Thus, it is clear that the provision contained in s. 143(2)(ii) of the Act was not complied with. 5. Coming to the legal issues, a reference was made to the meaning of service by post under the General Clauses Act, 1897. It is provided that where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression serve or either of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served on the assessee. Further, reliance was placed on the decision of the Hon'ble Orissa High Court in the case of ITO vs. Manmohanlal Ors. (1988) 72 CTR (Ori) 109: (1988) 173 ITR 10(Ori), in which it was pointed out that s. 282 of the IT Act, 1961, contemplates that a notice may be served on the person named therein either by post or as if it was a summons issued under the CPC, 1908. Respondent Nos. 1 and 2 were named in the notices as concerned persons, to whom notices were sent at their addresses by post. It was necessary that the notices were sent by registered post with AD. Insofar as respondent No. 3 was concerned, notices sent by registered post with AD should have been delivered either to the manager or the principal officer of the firm. The postal acknowledgement slip does not disclose that the notices were delivered at the address of the manger or the principal officer. If the notices were delivered to someone else, it cannot be said that the notices were duly delivered and served upon them. In that case, no presumption can be drawn. No attempt was made by the petitioner to prove by adducing evidence either oral or documentary, that the persons who received the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding given by the learned CIT(A) or the Tribunal that the notice in question was actually served on the assessee. Therefore, it was held that the assessee was not served with these notices and consequently was deprived of the opportunity of being heard before the levy of the penalty, which by itself was sufficient to set aside the order of the penalty. 8. In reply, the learned Departmental Representative pointed out that the first notice of hearing under s. 143(2) was to put in transmission on 11th/13th Nov., 1997, much before 30th Nov., 1997. The AO heard the assessee and the matter has also been heard twice by the CIT(A). Therefore, it can be inferred that the provisions contained in s. 143(2) of the Act have not (sic) been substantially complied with. He also produced the case record to show that the office copies of the notice and questionnaire, which were on record and a dispatch No. 2640 was also mentioned on the notice. Subsequent notices were issued in the same manner. If the subsequent notices were served, there is no reason to come to the conclusion that the notice dt. 11th/13th Nov., 1997 was not served upon the assessee before 30th Nov., 1997. He also filed a let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they do not pertain to the assessment year under question. In these circumstances, it is held that the impugned notice has not been served on the assessee. 10. Coming to the provisions contained in s. 292BB, it is pointed out that the same came into force w.e.f. 1st April, 2008. If it is considered to be a procedural section, its provision will apply where the hearing was conducted on or after 1st April, 2008, in which the assessee participated. If it is considered to be a substantive provision, it will apply to the proceedings of the asst. yr. 2008-09 and subsequent years and not to any earlier year. Therefore, this provision does not advance the case of the Revenue. 11. The decision in the case of Vardhman Estate (P) Ltd. (supra) also supports view that failure to serve the notice within the time would lead to the inference that the assessment was not valid. In other words non-service of the notice within the statutorily prescribed time-limit is not merely a procedural matter, the effect of which is washed off by the participation of the assessee in the proceedings or by the fact that subsequently sufficient opportunity of being heard was granted to the assessee. We may add ..... X X X X Extracts X X X X X X X X Extracts X X X X
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