TMI Blog2017 (4) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... served upon the assessee and /or was not served upon the assessee within the prescribed period of limitation provided under Section 143(2) of the Act. We are in complete agreement with the view taken by the learned tribunal. - Decided in favour of assessee - TAX APPEAL NO. 240 of 2017 - - - Dated:- 11-4-2017 - MR. M.R. SHAH AND B.N. KARIA, JJ. FOR THE APPELLANT : MR KM PARIKH, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Income Tax Appellate Tribunal C Bench, Ahmedabad (hereinafter referred to as the learned tribunal ) dated 18/10/2016 in ITA No.1258/Ahd/2012 for the Assessment Year 2008-09 by which the learned tribunal has dismissed the said Appeal preferred by the revenue and has confirmed the order passed by the learned CIT(A) quashing and setting aside the assessment order under Section 143(3) of the Income Tax Act (hereinafter referred to as the Act ) on the ground that within the period of limitation provided under Section 143 of the Act no notice under Section 143(2) of the Act was served upon the assessee within the time pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the assessment order is bad in law. [2.3] Feeling aggrieved and dissatisfied with the order passed by the learned CIT(A), revenue preferred Appeal before the learned tribunal and by the impugned judgment and order the learned tribunal has dismissed the said Appeal preferred by the revenue and has confirmed the order passed by the learned CIT(A). [2.4] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned tribunal, revenue has preferred the present Tax Appeal with the following proposed questions of law; (A) Whether the learned tribunal was right in law and on facts and circumstances of the case that notice under Section 143(2) of the Act was not served upon the assessee legally without appreciating the fact that notice under Section 143(2) of the Act was issued on 29/09/2009 well within the time limit and sent through speed post on 30/09/2009 on the address given by the assessee in its return of income for the Assessment Year 2008-09? (B) Whether the learned tribunal was right in law and on facts and circumstances of the case that notice under Section 143(2) of the Act was not served upon the assessee legally without appre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 143(2) of the Act was issued on 29/09/2009 well within the prescribed time limit and was sent through speed post on 30/09/2009 at the address given by the assessee in its return of income for the Assessment Year 2008-09. [3.2] It is further submitted by Shri K.M. Parikh, learned advocate appearing on behalf of the revenue that the learned tribunal has not properly appreciated the fact that the notice under Section 143(2) of the Act was in fact issued on 29/09/2009 well within the prescribed time limit and in fact the premises of the assessee was sealed by the High Court since 25/02/2009. It is further submitted by Shri K.M. Parikh, learned advocate appearing on behalf of the revenue that the learned tribunal has not appreciated the fact that the assessee was frequently changing his address and did not intimate its change in address. [3.3] It is further submitted that therefore in the facts and circumstances of the case the learned tribunal ought not to have confirmed the order passed by the learned CIT(A) setting aside the scrutiny assessment order on the ground that the notice under Section 143(2) of the Act was not served upon the assessee on or before 30/09/2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment order that after the notice under Section 143(2) of the Act was issued on 29/09/2009 (which has not been served on or before 30/09/2009 and naturally could not have been served as the same was dispatched to the postal authority on 30/09/2009), first notice under Section 142(1) of the Act was issued on 17/02/2010 and the same was served upon the assessee Company through speed post. In the assessment order it has been observed by the Assessing Officer that subsequently due to the change of the Assessing Officer and also due to the change of the address of the assessee, notices under Section 142(1) of the Act were issued on 19/07/2010, 23/07/2010, 10/08/2010, 02/11/2010 and 15/12/2010 respectively. Till the Assessing Officer issued the notice under Section 143(2) of the Act dated 29/09/2009 the Assessing Officer was not even aware and /or had no knowledge that the premises of the assessee has been sealed by the High Court since 25/02/2009, and therefore, the aforesaid factum shall not help the Assessing Officer /revenue. [4.2] Now so far as the submission on behalf of the revenue that as the notice under Section 143(2) of the Act was issued on 29/09/2009 and was se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts and circumstances of the case, Section 27 of the General Clauses Act shall not be of any assistance to the revenue. [4.3] Now so far as the reliance placed upon the decision of the Hon ble Supreme Court in the case of Banarsi Debi (Supra) is concerned, on facts the same shall not be applicable to the facts of the case on hand. In the case of Banarsi Debi (Supra) Hon ble Supreme Court was considering Section 34(1) of the Indian Income Tax Act, 1922 as well as subsequent amendment i.e. Section 4 of the Amending Act (Act 1 of 1959), where the word used were notice issued within the period of limitation but served upon the assessee subsequently. Under the circumstances, the aforesaid decision shall not be applicable to the facts of the case on hand. [4.4] Now so far as the reliance upon the decision of the Punjab Haryana High Court in the case of V.R.A. Cotton Mills (P) Ltd. (Supra) is concerned, as such, in the case before the Punjab Haryana High Court the notice was served upon the assessee by affixation at 11:20 p.m. on 30/09/2010. It was found to be a valid service in terms of the Code of Civil Procedure, and therefore, as such on facts the said de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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