TMI Blog2005 (3) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... these circumstances, the burden was upon the appellant to prove that notice was served upon the assessee within the prescribed time. The appellant had failed to prove its case in this regard. Appeal does not raise any substantial question of law which requires our decision. Dismissed - IT APPEAL NO. 62 OF 2005 - - - Dated:- 3-3-2005 - Judge(s) : SWATANTER KUMAR., MADAN B. LOKUR JUDGMENT The judgment of the court was delivered by Madan B. Lokur J.- The appellant is aggrieved by an order dated July 22, 2004 passed by the Income-tax Appellate Tribunal, Delhi Bench (for short "the Tribunal"), in I.T.A. No. 228/Delhi of 1999. The respondent/assessee filed its return of income for the assessment year 1995-96 on November 29, 1995. A no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the assessment framed was invalid. The appellant took up the matter in appeal before the Tribunal which rejected the contentions urged by the appellant. It was held that in the face of the affidavit filed on behalf of the assessee, the initial burden on the assessee to prove non-receipt of notice had been discharged and that the onus now lay upon the appellant to prove that the notice under section 143(2) of the Act had in fact been served upon the assessee by registered post. The Tribunal found that the appellant had not been able to prove its case at all and, therefore, there was no merit in the appeal. The relevant provision with which we are concerned is the proviso to section 143(2) (ii) of the Act and this reads as follows:- " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 34(1)(b) of the Indian Income-tax Act, 1922, a notice was required to be served on an assessee within eight years if the Income-tax Officer had reason to believe that income had escaped assessment. Factually, although a notice had been issued to the assessee therein within a period of eight years, it was served upon him after the eight year period was over. A learned single judge of the Calcutta High Court agreed with the submissions made on behalf of the assessee and quashed the notice. During the pendency of an appeal before the Division Bench, section 34 of the Indian Income-tax Act was amended by Amending Act No. 1 of 1959. Section 4 of the Amending Act debarred the court from questioning the validity of a notice issued under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is given to the expression "issued". Consequently, the Supreme Court held it possible that even though the notice was served beyond the prescribed time, it was saved by section 4 of the Amending Act. It is quite clear from the above that the decision relied upon by learned counsel for the appellant is not applicable to the facts of the present case. It was then submitted that the post office in which the notice was dispatched is an agent of the assessee and, therefore, when the notice is sent by registered post, it is deemed to be in the hands of the assessee (through its agent, the post office) on the date posted, which was before the expiry of the prescribed period. Reliance in this regard was placed upon Prima Realty v. Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into this question at all because the Tribunal set aside the assessment without finding it to be null and void; the assessment order was merely set aside on the ground that the notice under section 143(2) of the Act had been served upon the assessee beyond the period of one year prescribed by the law. We may also point out that there appears to be some doubt whether the notice was at all sent to the assessee because, as observed by the Commissioner of Income-tax (Appeals), the receipt showing that an envelope was sent by registered post merely contained the name of the assessee without its address. Consequently, it is quite possible that the notice may have been sent to the assessee at some wrong or even some incomplete address. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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