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Sh. Saurabh Dasgupta, Prop. Industrial Products Mfg. Co. Versus ACIT, Circle, Gurgaon

2017 (9) TMI 969 - ITAT DELHI

Validity of assessment u/s 144 - notice u/s 143(2) was not served at correct address - Held that:- In view of the frequent change in addresses, the assessee was required to inform the Assessing Officer to record the changes in his address. The Income Tax Department has provided the facility of change of address in Permanent account Number Database through form No. 49A and the assessee can request for change of jurisdiction of the Assessing Officer in view of the change address or place. - In .....

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f service as valid, then he is directed to decide the issue on merit of the addition also. It is needless to mention that assessee as well as Assessing Officer shall be afforded adequate opportunity of being heard. The grounds of appeal are accordingly allowed for statistical purpose. - ITA No. 5850/Del/2011 - Dated:- 15-9-2017 - SH. I.C. SUDHIR, JUDICIAL MEMBER AND SH. O.P. KANT, ACCOUNTANT MEMBER For The Appellant : Sh. Sandeep Ahuja, CA For The Respondent : Sh. S.S. Rana, CIT(DR) ORDER PER O. .....

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and not quashing the Assessment which is void abinitio as especially when - The Assessee received the first Notice u/s 143(2) dated 30.11.2009 for the Asst Year 2007-08 with a Wrong PAN No. as AFDPD1852K although the same was required to be validly served to him within 12 months of the filing of the Return i.e on or before 31st October 2008. The earlier 6 notices were issued (not validly served) to the assessee by ITO ward 1, Gurgaon which were returned undelivered and lying in the Assessment re .....

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ed to be served through affixture could not be possible there being no such addresses in Gurgaon. 2. Ld. CIT (Appeals) has erred in facts & law by accepting the vague explanation in the remand report of the Ld. ACIT dated 28.02.2011 which, was given after several reminder to the Ld. ACIT and as reproduced in Para 4 of Ld CIT (Appeal) s order and where in the Ld. ACIT kept silence on the Appellant s challenge of the Addresses to which any Valid Notice was serv ed or on which the affixture was .....

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leged invalid Notices sent by the Assessing Officer available in the records of the department called for by her being prejudicial in accepting such incomplete and vaguely worded remand report and erred in law by holding no merit on the issue of wrong addresses and unlawfully confirming alleged non cooperation by the Assessee on receipt of First Notice served to him on 30.11.09 and wrongly & illegally justified an assessment u/s 144 which is Void ab-initio. 4. It is therefore prayed that the .....

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en to the Assessee by Quashing the Order, Annulling the Assessment, cancelling consequent demands. 2. Facts in brief of the case as culled out from the order of the lower authorities and the statement of facts filed before the Ld. CIT-(A), are that the assessee filed return of income on 25/10/2007 declaring total income of ₹ 27,64,870/-. The case was selected for scrutiny and notice under section 143(2) of the Income-tax Act, 1961 (in short the Act ) was issued. This notice was sent by spe .....

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e under section 143(2) of the Act. The assessee submitted that: (i) he has been staying at U-79/10, DLF Phase III, Qutab Enclave, Gurgaon, (i.e. different address) for last many years and in the return of income for the year under consideration e-filed on 25/10/2007, the assessee mentioned the same address. (ii) the notice under section 143(2) of the Act for selection of the case under scrutiny was served on 30/11/2009 at the above address, whereas as per law, it was required to be served validl .....

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t Manufacturing Company DLF -III, Qutab Enclave, Gurgaon. 2.5 The learned CIT-(A) further observed that the notice sent by him at the new address i.e. 79/10, DLF, phase-3, Qutab Enclave, Gurgaon also returned back and, thus, only intention of the assessee was non- Corporation. Accordingly, he dismissed the appeal of the assessee without deciding the merit of additions. Aggrieved, the assessee is in appeal before the Tribunal raising the grounds as reproduced above. 3. Before us, the learned coun .....

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in which the return of income was filed. He submitted that in absence of valid notice the assessment completed u/s 143(3) is bad in law and void-ab-initio. 4. The learned CIT(DR), on the other hand, submitted that first notice u/s 143(2) was duly served on the address provided in PAN data base and also affixed on that address within the prescribed period of 12 months from the end of the month, in which return of income was filed. He submitted that notice was also served business premised of the .....

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utab Enclav, Gurgaon . As this notice sent by the speed post returned back undelivered, the Assessing Officer on 29/09/2008 directed the Inspector of his office to serve notice through affixture as provided under Rule 17 of order V of Civil Procedure Code (CPC), 1908. The Inspector affixed the notice at the above address in presence of two witnesses and submitted the report to the Assessing Officer. A photocopy of the report of Inspector extracted from the assessment record is placed on the file .....

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r: Service of notice generally. 282. (1) A notice or requisition under this Act may be served on the person therein named either by post or as if it were a summons issued by a court under the Code of Civil Procedure, 1908 (5 of 1908). (2) Any such notice or requisition may be addressed- (a ) in the case of a firm or a Hindu undivided family, to any member of the firm or to the manager or any adult member of the family ; (b ) in the case of a local authority or company, to the principal officer t .....

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herefore, notice was served through affixture. As per Order V of CPC (1908), when notice is refused to be accepted or the person is not found at the address the notice may be served through affixtures. For the sake of convenience, Order V Rule 17 of Code of Civil Procedure, 1908 is reproduced as under: Order V 1 to 16 …………………………………………………………. 17 .....

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empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstanc .....

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med before us that assessee has been staying at the address U-79/10, DLF Ph-III, Qutab Enclav, Gurgaon for last many years and the address at which notice was served is not in existence. Whereas on the other hand, the Ld. CIT(DR) claimed that the notice was served on the address provided in PAN data base and this being one of the known address of the assessee, it was validly served on the assessee. 12. In this regard, we would like to refer the Rule 127 of the Income-tax Rules, which reads as un .....

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(a) for communications delivered or transmitted in the manner provided in clause (a) or clause (b) of sub-section (1) of section 282- (i) the address available in the PAN database of the addressee; or (ii) the address available in the income-tax return to which the communication relates; or (iii) the address available in the last income-tax return furnished by the addressee; or (iv) in the case of addressee being a company, address of registered office as available on the website of Ministry of .....

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ndustrial products manufacturing company Basai Road, Opp: N K Rubber Factory, Gurgaon. 15. In form No. 36 filed before the Tribunal, the assessee again provided a new address as under: Flat No. 702, Adhunik Co-op Group Housing Society Ltd. Plot No. 8, Sector -52, Gurgaon, Haryana, 122002. 16. We are of the opinion that in view of the frequent change in addresses, the assessee was required to inform the Assessing Officer to record the changes in his address. The Income Tax Department has provided .....

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