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ITO, Ward – 1, Uaar Pradesh Versus Shah Javed Saddat and Vica-Versa

2016 (3) TMI 919 - ITAT DELHI

Validity of notice u/s 143(2) - Held that:- When the envelope containing notice u/s 143(2) of the Act issued against the assessee was not received by the office concern for service upon the assessee then it cannot be presumed that the same was validly served upon the assessee. Per contra, under above noted facts and circumstances it can safely be presumed that the revenue department could not establish the very fact of valid service of notice upon the assessee u/s 143(2) of the Act within the pr .....

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AND Sri O.P. Kant, AM For The Assessee : Sh. Pratiyush Jain, CA For The Revenue : Smt. Anima Barnwal, Sr. DR ORDER PER C.M.Garg, J.M. Above captioned appeal of the Revenue as well as cross objection of the assessee have been preferred against the order of the Commissioner of Income Tax (Appeals) Muzaffarnagar dated 01.11.2012 in appeal no. 284/11-12/MZR for AY 2009-10. 2. The ld. Departmental Representative (DR) agreed that the arguments on the cross objection of the assessee may kindly be heard .....

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at the not ice under sect ion143(2) was not val id fr not providing any reasonable t ime for compl iance to the respondent . 3. First of all, the ld. Departmental Representative (DR) posed a legal objection that the assessee did not press his legal ground no. 5 before the CIT(A) during first appellate proceedings and ground no 5 of the assessee challenging the service of the notice u/s 143(2) of the Act of the Income Tax Act, 1961( for short as the Act) has been dismissed as not pressed, therefo .....

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no. 5 and the same was dismissed. The ld. AR vehemently contended that when the CIT(A) granted relief to the assessee on merits and the revenue is not accepting the same and further challenging the conclusion by way of filing appeal before the Tribunal then the assessee has no alternate but to re-agitate the legal objection by way of cross objection which was posed before the CIT(A) as ground no. 5. 5. On carefully consideration of above rival submissions of both the sides, we are of the conside .....

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towards letter dated 7.11.2011 from the office of the Sr. Post Master, Saharanpur wherein the ITO, Saharanpur was informed about the service of the notice on the assessee that speed post U/R has not received in the office of the Sr. Post Master for delivery. The Ld. AR vehemently contended that when the respective Sr. Post Master did not receive the speed post wherein the notice u/s 143(2) of the Act was issued to the assessee then valid service on the notice of the assessee cannot be presumed. .....

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he same day i.e. 31.8.2010. The ld. AR further pointed out that even assuming but not accepting that the notice was served on the assessee on 31.8.2010 then no sufficient time was given to the assessee for submitting his reply therefore it is a clear violation of principles of natural justice by the AO. For this proposition the Ld. AR to support has placed reliance on the following decisions of Hon ble High Court and Tribunal (i) Munna Lal Murlidhar vs. CIT reported as 79 ITR 540 (All.) (ii) M. .....

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i tted that the first notice was issued on 23.8.2010 which was handed over to the postal authorities on 30.8.2010 for service upon the assessee within prescribed time, therefore, legal objection of the assessee is not sustainable. 8. On carefully consideration of rival submissions of both the sides at the very outset we may point out that as per proviso to of Section 143(2)(ii) of the Act no notice under said clause (ii) shall be served on the assessee after expiry of 6 months from the end of th .....

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