GST Helpdesk   Subscription   Demo   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2016 (3) TMI 114 - ITAT DELHI

2016 (3) TMI 114 - ITAT DELHI - TMI - Validity of service of notice - modes of service of notice - assessee submitted that the notice alleged to be sent by the speed post at the address of the assessee, was not served - Held that:- The onus to communicate the correct address or change of address to the Department either applying through prescribed form for making correction in permanent account number (PAN) database or communication to the Assessing Officer was on the assessee, which the assesse .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ts of the present case are different from the facts of the cases cited by the assessee. In view of change of place, the assessee himself is responsible, if at all the notice was not received by him at the old address. In the circumstances, the assessee failed to rebut the presumption of valid service. The assessee has failed to rebut the presumption that was raised against him about the due service of the notice u/s 143(2) of the Act. Hence, we hold that the Assessing Officer has complied the re .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ax Officer was not having jurisdiction is without proper appreciation of the facts and thus the ratio of the case law relied upon by the assessee is not applicable over the facts of the case in hand, hence, this grounds of the assessee is dismissed. - Decided against assessee

Transfer of case - whether no order under Section 127 of the Act transferring the case to the Addl. Commissioner of Income Tax in exercise of the concurrent jurisdiction vested in her? -Held that:- DR has submitt .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

roduced before us by the Revenue. Thus, in absence of any such order, it canít be established that said assessment order passed was within the jurisdiction of the Addl. Commissioner of Income-Tax. Thus, we hold that the assessment completed by the Additional Commissioner of Income-tax in the case being without jurisdiction, is void ab initio - Decided in favour of assessee - ITA No. 672/Del/2013 - Dated:- 12-2-2016 - Sh. H. S. Sidhu, Judicial Member And Sh. O. P. Kant, Accountant Member For 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

e (dt. 21.07.2008), issued u/s 143(2) of the Income Tax Act, 1961 by Income Tax Officer, Ward 19(4), was served on the assessee. 2. That the learned Commissioner of Income Tax(Appeals) erred in law by holding that the notice issued by Income Tax Officer, Ward 19(4) u/s 143(2) was a valid notice despite the fact that the Income Tax Officer, Ward 19(4), was not the Assessing Officer in terms of the jurisdiction order no. Addl.CIT/R-19/2005-06/356 dated 31.03.2006. 3. That the learned Commissioner .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

any reasoning , in disallowing the business loss of ₹ 15,64,394/- and deduction of property tax of ₹ 37,528/-, when these were not even the subject matter of appeal before her. 5. That, at any rate, on the facts and circumstances of the case, the learned Commissioner of Income Tax(Appeals) erred in disallowing the business loss of ₹ 15,64,394/- and deduction of property tax of ₹ 37,528/-. 3. The facts in brief of the case as culled out from the orders of lower authorities .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the Income Tax Department and was sent to the assessee at the address given in the return of income as well as available in the database of the Income Tax Department i.e. Sh. Harvinder Singh Jaggi, Delta Exports, B-33/1, Group Industrial Area, Wazirpur, Delhi, through speed post service of the Indian Postal Department. Subsequently, on 26th March, 2009, records of the case were transferred to the Asstt. Commissioner of Income Tax, Circle 19(1), New Delhi, being the returned income more than  .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ted to be assigned to the Additional Commissioner of Income Tax, Range 19, New Delhi, who was having concurrent jurisdiction over the case, for completion of the assessment. She issued notices under Section 143(2) of the Act on 15.07.2009 and 20.08.2009. The notice dated 20th August, 2009 was served through speed post at another address i.e. D-13B, 1st Floor, East of Kailash, New Delhi. In response to the notice, the Authorized Representative attended before the Addl. Commissioner of Income Tax .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

essee had not been served any notice prior to the notice dated 20th August, 2009. He also submitted that in view of the order no. Addl.CIT/R-19/2005-06/356, dated 31.03.2006, the jurisdiction of the case of the assessee vested with the Asstt. Commissioner of Income Tax, Circle 19(1), New Delhi and the assessee was not aware of subsequent order vesting the jurisdiction of the case of the assessee with the Addl. Commissioner of Income Tax. In response to the letter of the Authorized Representative .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

horized Representative again objected the assessment proceedings on both ground i.e. service of first notice as well as jurisdiction of Addl. Commissioner of Income Tax. The notice dated 04.11.2009 was sent on new address provided by the ld. Authorized Representative. Again on 20th November, 2009, the ld. Authorized Representative filed objection challenging the service of notice as well as jurisdiction of Addl. Commissioner of Income Tax. The Authorized Representative also filed an affidavit fr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the speed post. After this date, all the correspondences have been made by the Assessing Officer at the new address of correspondence with a copy also endorsed at the address provided in the return of income. Finally, one more notice under Section 143(2) of the Act was sent at the new address of correspondence as well as at the address provided in the return of income on 18.12.2009. However, the same was also not complied. The notice dated 18.12.2009 was served on the wife of the assessee at th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

on 143(2) of the Act was not served within the limitation period. The assessee also raised the issue that the Addl. Commissioner of Income Tax was not authorized by the Commissioner of Income Tax under Section 127 of the Act to pass the order in the case of the assessee. As regard to quantum of addition, the ld. Commissioner of Income Tax (Appeal) after allowing the opportunity, gave relief and assessed income at ₹ 75,01,602/-. In respect of the legal issues raised, the ld. Commissioner 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

f Section 27 of the General Clauses Act held that the mandatory notice under Section 143(2) of the Act was served on the assessee whereas the assessee had rebutted the presumption of service by categorically denying on affidavit that he had received the notice issued on 21.07.2008 by ITO, Ward 19(4), New Delhi. In support of his contention, he relied on the judgment of the Hon ble Delhi High Court in the case of CIT Vs. Silver Streak Trading P. Ltd., (2010) 326 ITR 418 (Delhi) and CIT Vs. Messrs .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s and no documentary evidence has been brought on record whereas the Assessing Officer has duly brought to his knowledge the proof gathered from the Postal Department that notice was duly sent at the address given by the assessee in the return of income, therefore, the assessee did not success in rebutting the presumption under the General Clauses Act. 6. We have heard rival submissions and perused the material on record including the assessment folder of the case. As far as the fact of sending .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

was served on the assessee, or the assessee did not receive any such notice at the given address. 7. Before we decide the issue of validity of service of notice, we would like to refer the relevant provisions of the Act and judicial pronouncements on the issue in dispute. 7.1 The section 282 of the Act has provided various methods of service of notice as under: 282.(1) The service of a notice or summon or requisition or order or any other communication under this Act (hereafter in this section r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

uments as provided by rules made by the Board in this behalf. (2) The Board may make rules providing for the addresses (including the address for electronic mail or electronic mail message) to which the communication referred to in sub-section (1) may be delivered or transmitted to the person therein named. Explanation.-…………………………………………………………&h .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ved and a duplicate copy of notice dated October 21,1999 was received by the learned counsel of the assessee, who endorsed the office copy with the remark time barred notice received and this was followed by an affidavit by the assessee stating that it had not received any notice prior to the notice dated October 21, 1999. The Hon ble Court held that in such a case onus was on the Revenue to show that the notice dated November 28, 1998 was in fact served on the assessee within the time prescribe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hat facts of the case of the assessee are different then the cases cited. In the case of Silver Streak Trading P. Ltd.(supra), the Revenue failed to bring on record to suggest that notice dated November 28, 1998 was in fact served upon the assessee on November 30, 1998 . The relevant part of the judgement is reproduced as under: 11. In so far as the present case is concerned, it is not the case of the assessed that it ever received notice dated 28th November, 1998. In fact, its case has been tha .....

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, served on the assessed within the time prescribed by law. The Revenue has not been able to discharge its onus either before the Tribunal or before us. We, therefore, find that no substantial question of law arises and the appeal is dismissed. 7.4 Whereas in the present case, the Revenue has provided enough proof that the notice was sent through speed post at the correct address provided in the return of income. Further, in the case of Lunar Diamonds Ltd. (supra), the receipt issued by the p .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

24 taxmann.com 27, the Hon ble High Court of Jharkhand has dealt the issue of notice of service though speed post and rebuttable presumption of the service and held that when the dispatch has been proved by the receipt number of speed post and the notice has been sent at correct address, it is presumed that the notice was delivered to the assessee. The relevant paragraph of the judgement is reproduced as under: 14. From a bare perusal of the order-sheets, shown to us by the assessee, started fro .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

2) of the Act of 1961 is concerned, that question is fully proved. 15. Learned counsel for the appellant vehemently submitted that mere proof of dispatch of post is not the proof of service of the notice upon the receiver. 16. In a matter of service through post, there are certain ways whereby notices are sent through department of post. In this case, as we have already discussed that in the order sheet, name and address of the assessee was mentioned and address is wrong was not the plea of 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

st upon the assessee after the expiry of a period of three months and by that time, the record was weeded out, the only evidence, which could have been produced by the Department, is the proof of the dispatch of the notice and not of not-receiving the said post bade by the Department. Against this evidence of Department, there is only word of mouth of the assessee that he did not receive the notice under Section 143(2) of the Act. In that fact situation, the Assessing Officer as well as the Trib .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

returned back, it is presumed to be served . The relevant paragraphs are reproduced as under: 17. So far as dispute with respect to the interpretation of the "Post", "Registered Post" and "Speed Post" are concerned, the Tribunal has considered the issue in detail. We would like to quote the relevant paragraphs from the order of the Tribunal, which are as under :- 11. …. 12. ….. 13. … 14. …. 15. …. 16. … 17. …. 18. &h .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

essment order as also receipt of speed post make it clear that all the conditions stipulated by section 27 of the General Clauses Act are satisfied and hence service of the impugned notice would be deemed to have been effected well before the expiry of time limit stipulated by section 143(2) as the said notice was sent several months before the expiry of period stipulated by the time provision of section 143(2). 27. Non-rebuttal of Statutory Presumption: The legal fiction created by section 27 o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the Hon'ble Supreme Court has, in the context of section 138 of the Negotiable Instruments Act, held as under: "No doubt Section 138 of the Act does not require that the notice should be given only by "post". Nonetheless the principle incorporated in Section (quoted above) can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

order included not only the receipt no. under which speed post was sent but also the tracking code. Perusal of the assessment order shows that the AO had apprised the assessee of the aforesaid facts in the course of assessment proceedings also. It was therefore for the assessee to adduce relevant evidence to prove that the said notice was not served upon him and also that he was not responsible for its non-service. However, the assessee has not adduced any evidence to prove so in spite of the f .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ement with the reasons given by the Tribunal with respect to the interpretation given by the Tribunal on various issues decided by the Tribunal which we have quoted above. 7.7 Thus, we can summarize that for a valid service of notice following conditions should be fulfilled: (i) the notice should have been sent through any of the modes mentioned in section 282 of the Act (ii) The name and address should be correctly written over the notice and the envelope containing the notice and the envelope .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

g rebuttal of presumption 7.8 Now when we revert back to the facts of the assessee, we find that in the case of the assessee the notice was sent though speed post and the receipt of postal authorities is available on record. The Assessing Officer has also submitted that the said notice was not returned back. The assessee has however filed an affidavit claiming that said notice was not received. Thus , in the case of the assessee the dispute lies whether the presumption stands rebutted by the ass .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

return of income i.e. Delta Exports, B-33/1, Group Industrial Area, Wazirpur, Delhi, which goes to show that the assessee has changed his address and the new address was not communicated to the Income Tax Department. The onus to communicate the correct address or change of address to the Department either applying through prescribed form for making correction in permanent account number (PAN) database or communication to the Assessing Officer was on the assessee, which the assesses failed to do .....

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 case are different from the facts of the cases cited by the assessee. In view of change of place, the assessee himself is responsible, if at all the notice was not received by him at the old address. In the circumstances, the assessee failed to rebut the presumption of valid service. 7.10 Having given thoughtful consideration of the entire matter in the light of the facts and circumstances of the case, we are of the view that the assessee has failed to rebut the presumption that was raised a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Officer in terms of the jurisdictional order bearing Order no. Addl.CIT/R-19 /2005-06/356, dated 31.03.2006, copy of which is placed at page 11 of the assesee s paper book. 8.1 Learned Authorized Representative of the assessee submitted that the return of income of the assessee was more than the limit prescribed for the jurisdiction of the Income Tax Officer. He drawn our attention to the order dated 31.03.2006 issued by the learned Addl. Commissioner of Income Tax specifying the jurisdiction. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ubmitted that the learned Authorized Representative has not noticed last sentence of para no. 1 of the order. 8.3 We have heard the rival submissions and perused the material on record. The relevant para of the order of the Addl. Commissioner of Income Tax, dated 31.03.2006 is reproduced as under: 1. In exercise of the powers conferred by sub-section (2) of section 120 of the Income Tax Act, 1961 (42 of 1961) and in supersession of all earlier notifications and orders except as respects things d .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hi, vide order dated 1/8/2001, hereby direct that the Dy./Asstt. Commissioner of Income Tax and Income Tax Officers for the charges specified in Column (2) of Schedule-I, hereto annexed shall exercise the powers and perform the functions of Assessing Officer in respect of such cases of classes of cases specified in corresponding entries in column(5) of the said Schedule-I or of such persons of classes of persons specified in the corresponding entries in column (3) of the said Schedule-I and in r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e facts and thus the ratio of the case law relied upon by the assessee is not applicable over the facts of the case in hand, hence, this grounds of the assessee is dismissed. 9. In ground no. 3, the assessee has raised that there was no order under Section 127 of the Act transferring the case to the Addl. Commissioner of Income Tax in exercise of the concurrent jurisdiction vested in her. The learned Authorized Representative submitted that the order passed by the Addl. Commissioner of Income Ta .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| 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