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PR. COMMISSIONER OF INCOME TAX VADODARA 2 Versus NEXUS SOFTWARE LTD

Non service of notice u/s 143(2) - Period of limitation - Held that:- The word “served” used in Section 143(2) of the Act is very significant and very clear. However in appropriate case being made out within the four corners of the General Clauses Act, if the notices are issued before reasonable time of the prescribed period of limitation and it has been dispatched /sent for delivery within the reasonable time, in that case, there can be presumption under Section 27 of the General Clauses Act. H .....

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3(3) of the Act on the ground that the notice under Section 143(2) of the Act was not 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 : HONOURAB .....

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n 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 prescribed under Section 143 of the Act, revenue has preferred the present Tax Appeal. [2.0] The facts leading to the present Tax Appeal in nutshell are as under; [2.1] The assessee filed the return of income on 30/09/2008 declaring the total income at &# .....

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ssessee on or before 30/09/2009. Even the said notice was served upon the assessee or not is also not on record as the acknowledgment of the notice under Section 143(2) of the Act is not available. It appears that thereafter notice under Section 142(1) of the Act dated 17/02/2010 was served upon the assessee and at that time it came to the knowledge of the assessee that the case of the assessee was selected for scrutiny. The assessee - Company raised objection before the Assessing Officer that t .....

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der Section 143(3) of the Act determining the return of income at ₹ 11,88,35,320/-. [2.2] Feeling aggrieved and dissatisfied with the scrutiny assessment order under Section 143(3) of the Act, the assessee preferred Appeal before the learned CIT(A). The learned CIT(A) allowed the said Appeal preferred by the assessee and set aside the scrutiny assessment order under Section 143(3) of the Act solely on the ground that the notice under Section 143(2) of the Act was not served upon the assess .....

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g 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 sen .....

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e Gujarat High Court since 25/02/2009? (C) 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 assesee legally without appreciating the fact that the assessee was frequently changing its addresses and it did not intimate the Department regarding its change in addresses? (D) Whether the learned tribunal was right in law and on facts and circumstances of the case that notice under Section 143(2 .....

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ce under Section 143(2) of the Act dated 29/09/2009 was issued beyond the time limit? [3.0] Shri K.M. Parikh, learned advocate has appeared on behalf of the revenue. It is submitted by Shri K.M. Parikh, learned advocate appearing on behalf of the revenue that in the facts and circumstances of the case, the learned tribunal has materially erred in confirming the order passed by the learned CIT(A) and in holding that the notice under Section 143(2) was not served upon the assessee on or before 30/ .....

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the Act. 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 as such notice under 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 appeari .....

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ress 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 i.e. within the period of limitation prescribed under Section 143(2) of the Act. For the aforesaid, Shri K.M. Pa .....

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admit /allow the present Tax Appeal. [4.0] We have heard Shri K.M. Parikh, learned advocate appearing on behalf of the revenue at length. It is not in dispute that as per Section 143(2) of the Act, for the Assessment Year 2008-09, notice under Section 143(2) of the Act was required to be served within the period of six months i.e. on or before 30/09/2009. It is not in dispute that for the first time notice under Section 143(2) of the Act was issued on 29/09/2009 and in fact dispatched to the po .....

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uch, the learned tribunal has rightly confirmed the order passed by the learned CIT(A) setting aside the assessment order under Section 143(3) of the Act on the ground that the notice under Section 143(2) of the Act has not been served upon the assessee within the prescribed period of limitation provided under Section 143(2) of the Act. [4.1] Now so far as the submission on behalf of the revenue that the learned tribunal has not properly appreciated the fact that the premises of the assessee was .....

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ority 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 Assess .....

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notice upon the assessee on 30/09/2009, and therefore, it can be said to have been served upon the assessee within the prescribed period of limitation provided under Section 143(2) of the Act and reliance placed upon Section 27 of the General Clauses Act is concerned, it is required to be noted that in the facts and circumstances of the case, Section 27 of the General Clauses Act shall not be applicable and /or the same shall not be of any assistance to the revenue. There is no question of presu .....

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by speed post on 30/10/2002 for the Assessment Year 2001-02 to the address mentioned in the return of income. The notice was redirected and was served at the redirected address on 06/11/2002. The learned tribunal held that the notice had been served within the prescribed period of limitation and the assessment made pursuant to the search was valid assessment. The matter was carried to the Delhi High Court. Before the High Court it was contented on behalf of the revenue that the notice under Sec .....

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sent by speed post must have been delivered to the assessee within 24 hours. In the present case also there cannot be any presumption that the notice which was dispatched to the postal authority for delivering it to the assessee on 30/09/2009 must have been delivered to the assessee on the same day i.e. 30/09/2009. Under the circumstances, even in the 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 .....

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equently. 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 t .....

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