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2016 (1) TMI 773 - ITAT DELHI

2016 (1) TMI 773 - ITAT DELHI - TMI - Validity of assessment - Non-service of notice u/s 143(2) - Held that:- 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 the assessee within the prescribed limit and hence, the contention of the Revenue is rejected. We are, therefore, of the considered opinion that it is a clear case of non-service of notice u/s 143(2) of the Act within the statutory period as .....

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i Raj Kumar Gupta, CA. For The Revenue : Shri V.R. Sonbhadra, Senior DR. ORDER PER Chandra Mohan Garg, JM:- 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 .....

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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 assessee carried the issue before Hon ble Jurisdictional High Court of Allahabad in Civil Misc. Writ Petition No.1071 of 2005 which was allowed by order dated 25.01.2006 and the Hon ble High Court directed this .....

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er book of the department, affidavit of the assessee, affidavit of notice server Shri Lal Singh and orders/judgments relied by both the sides and written synopsis of the assessee dated 02.07.2015 spread over 16 pages. 4. The learned Assessee s Representative (AR) submitted that the return for assessment year 1998-99 was filed on 31.10.1998 and as per Section 143(2) of the Act, the notice should have been issued and served on or before 31.10.2009 and the assessee has filed affidavit supporting th .....

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allowed time limit for valid assumption of jurisdiction for framing assessment. Reliance has been placed on following orders/judgments :- (i) Whirlpool India Holdings Ltd., 1 SOT 165 (Delhi). (ii) Worldwide Exports Pvt.Ltd., 272 ITR 162 (Delhi). (iii) Bhagat Singh Vs. Virender Singh - 75 ITD 1 (Delhi)(TM). (iv) Shri Sidh & Co. - 194 ITR 747 (All). (v) Baikunth Nath Singhal - 89 ITD 109 (Agra). (vi) Vipan Khanna - 255 ITR 220 (P&H). (vii) CBDT Circular No.549 dated 31.10.1989 (Para 5.13). .....

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ed 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 .....

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it shall be presumed that the notice was not served upon the assessee within prescribed limitation. 7. The learned AR lastly submitted that the Department has filed a paper book containing some documents including affidavit of Shri Lal Singh, so called notice server, but this claim does not stand proved from these documents as the affidavit of Shri Lal Singh does not mention as to on whom the service had been made. It simplicitor states that service effected on the assessee which is a partnershi .....

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of the person on whom service has been claimed, no credence or weightage and beneficial use of the affidavit of Shri Lal Singh can be assigned in favour of the Department. Hence, when Department has filed to prove proper and valid service of notice u/s 143(2) of the Act within the prescribed time limit neither on any partner or any authorized representative or manage of the assessee partnership firm as required by Section 282(2)(a) of the Act, within prescribed time limit, then impugned assessme .....

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Shri Lal Singh) knew the authorized person (DPB pages 7-12), letter of the ACID, Bulandshahr certifying that notices issued earlier or subsequent to the impugned notice were duly served (DPB page-13), proof of service of notice at Sr.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 .....

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ee 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 not establish proper service of notice within prescribed limit viz. .....

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, at the very outset, we respectfully take cognizance of the dicta laid down by Hon'ble Delhi High Court in the case of CIT Vs. Lunar Diamonds Ltd. (supra) wherein it was held that the assessee had filed an affidavit stating that it did not receive the notice and the Tribunal rightly held that under these circumstances, the burden was upon the Department to prove that the notice was served upon the assessee within the prescribed time. Their Lordships further held that in the eventuality when .....

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e notice server Shri Lal Singh which states that he served the notice upon the assessee on 17.08.1999 and entry of the service of the said notice was placed at page 1 Sr.No.8 of the service register and receipt/acknowledgement was returned to the related staff member of the department. We further observe that on behalf of the Revenue, another affidavit of Shri Tej Singh, Tax Assistant deposed on 19.05.2006 has also been filed which states that he received acknowledgement/receipt of the service o .....

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.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 .....

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ction on the erring staff and we are unable to see any show cause memo or inquiry notice or any other investigation in this regard which proves that the officials are quite clear in their notions that such so called notice and so called receipt never existed. Since no such notice was prepared and served, the same could not have been available in the assessment records. It is also relevant to mention that as per notice service register page 1 Sr.No.8, notice was served on the assessee on 16.08.19 .....

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Officer, in the register of notice server Shri Lal Singh, the service entry is appearing at Sr.No.26 while the notice server Shri Lal Singh in his affidavit states that the service entry was placed at page 1 Sr.No.8. Both these registers are separate and explain different dates of alleged service of notice and in the totality of facts and circumstances, we are unable to accept the contention/version of the department that Shri Lal Singh served notice on the assessee and copy of the notice and a .....

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r on partner of the firm or authorized representative of the firm or manager of the firm as required u/s 282(2)(a) of the Act and notice server Shri Lal Singh in his affidavit simply states that he served the notice on the assessee but it is highly improbable, therefore, valid and proper service of notice cannot be inferred in favour of the department. 14. On the basis of the foregoing discussion and logical discussion of the departmental affidavit and other documentary evidence, we are inclined .....

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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 m .....

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