TMI Blog2016 (1) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... - ITA No.4979/Del/2004 Assessee s appeal :- These cross appeals by the Revenue and the assessee and crossobjection of the assessee have been filed against the order of the Commissioner of Income Tax (Appeals) dated 19.04.2004 for assessment year 1998-99 passed in pursuant to the set aside order passed by ITAT, New Delhi dated 05.03.2004 in ITA No.1608/Del/2002. 2. At the very outset, it is pertinent to mention that the ITAT set aside the appeal to the file of CIT(A) for afresh adjudication and the CIT(A) granted part relief to the assessee. Consequently, the assessee filed this appeal agitating the issues on which the assessee could not get relief and the Revenue has also filed appeal agitating the issues on which the CIT(A) granted relief to the assessee. At the same time, the assessee has also filed cross-objections against the said order. Further, during appellate proceedings before the Tribunal, the assessee pleaded to raise additional ground challenging the validity of assessment order on the ground of no service of notice u/s 143(2) of the income-tax Act, 1961 (for short the Act ) but this prayer was rejected by the Tribunal vide order dated 26.05.2005. The assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na Hotels Ltd. 57 TTJ 701 (Bang.). (xii) Sree Murugan Trading Co. 68 ITD 6 (Coch.). 5. The learned AR further contended that if service of notice is denied by the assessee by filing affidavit then onus stands shifted on the Assessing Officer/Department to rebut the same and to establish valid and proper service of notice within prescribed time limit and documents submitted by the Department in its paper book including affidavit of the so called notice server does not establish the fact of proper or valid service of notice and the Department had failed in proving the service of the notice within prescribed time limit. To support this contention, reliance has been placed on following judgements of Hon'ble Delhi High Court :- (i) Tele Tube Electronics 42 DSTC-J69 (Delhi-HC). (ii) CIT Vs. Silver Streak Trading (P) Ltd. 169 Taxman 16 (Delhi). (iii) CIT Vs. Lunar Diamonds Ltd. - 281 ITR 1 (Delhi). 6. The learned AR vehemently pointed out that admittedly no acknowledgement receipt and even no copy of such notice is available with the Department to prove service u/s 143(2) of the Act and the Department has to prove valid and proper service of notice with posit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24, 25, 27 28 of notice server s register to other assessees by the same notice server in the same manner (DPB pages 14-17), affidavit of Tax Assistant Shri Tej Singh sworn on 19.05.2006 (DPB page 18), copy of the scrutiny register giving details of assessee s case at S.No.26 (DPB page 19) and photocopy of order sheet of the assessment record dated 12.08.1999 clearly demonstrate issuance of notice u/s 143(2) of the Act to the assessee, hence, onus of the Department stands discharged and it should be presumed that notice was properly and validly served upon the assessee on 17.08.1999 which is within the prescribed time limit, hence, it is proved by the positive and best available evidence that the notice was validly and properly served upon the assessee within prescribed limitation. Thus, the legal ground/additional ground of the assessee may kindly be dismissed. 9. Replying to the above, the learned AR further reiterated relevant part of the assessee s written synopsis and submitted that the onus of assessee stood discharged by way of giving affidavit of assessee s partner Shri Brij Mohan dated 23.03.2005 and all 20 documents submitted by the department in its paper book do no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the notice has been mentioned as 16.08.1999 whereas the notice server Shri Lal Singh in his affidavit had stated that the notice was served upon the assessee on 17.08.1999. 12. When we further peruse the letter of ACIT, Circle Bulandshahr dated 01.06.2006 available at page 13 of the departmental paper book, then it is ample clear that the Assessing Officer himself has informed to the learned DR that the notice server Shri Lal Singh served five notices to various assessees including the assessee of the present case M/s Mohan Dairy and the acknowledgements of service were placed on record and as per available records, four acknowledgements are available except acknowledgment of present assessee i.e. M/s Mohan Dairy. In these circumstances, merely affidavits of Notice Server Shri Lal Singh and Tax Assistant Shri Tej Singh state that the notice was served upon the assessee and acknowledgement was placed on record but this notice and acknowledgement have not been found in the relevant assessment records and if these actually existed and placed in the file and later on not available in the file, then the Assessing Officer should have taken departmental action on the erring staff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the departmental affidavit and other documentary evidence, we are inclined to hold that the assessee discharged its onus by submitting affidavit of the partner of the assessee firm stating that no notice u/s 143(2) of the Act was served till 31.10.1999 which was the last day of prescribed limit for the return which was filed on 31.10.1998. At the same time, when as per dicta of Hon'ble Delhi High Court in the case of Lunar Diamonds Ltd. (supra), the onus shifted on the Revenue to show proper and valid service of the notice, then we decline to accept the contention and circumstances of the Revenue that Shri Lal Singh, notice server served the notice upon the assessee and returned the copy of the notice and acknowledgement to Tax Assistant Shri Tej Singh who, in turn, kept these documents in the relevant assessment record file and the same were misplaced subsequently and hence, on the basis of proof of service of other four assessees during the same period, inference of valid service of notice should be inferred. We further make it clear that the Revenue miserably failed to discharge its onus to show that the notice u/s 143(2) of the Act was validly and properly served upon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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