TMI Blog2019 (7) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... er some limitation setting in or the right to file appeal against it being jeopardized, the AR candidly admitted that no such legal right of the assessee was impaired. In view of the foregoing discussion, we hold that the allegation levelled by the assessee that the impugned order was antedated by the ld. CIT(A), is not correct and is hereby rejected. The first additional ground is, ergo, dismissed. Non-service of notice u/s.143(2) - validity of reopening of assessment - HELD THAT:- The assessee has placed on record a copy of his letter dated 28-11-2011 addressed to the DCIT objecting to the service of notice dated 08-09- 2010 purportedly issued u/s. 143(2) and served upon him and stated that I would like to state that the said notice 08-09-2010 has not been received by me . The assessment order in this case was passed on 30-12-2011. Thus, it is proved that the assessee did raise objection of the non-service of notice before the AO before the completion of assessment and such an objection has not been disposed of by the AO either in the assessment order or otherwise. It is evident from the assessment folder that notice u/s.143(2) dated 08-09- 2010 was issued but neve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in National Thermal Power Company Ltd. Vs. CIT (1998) 229 ITR 383 (SC) has observed that the purpose of the assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in accordance with law. If, for example, as a result of a judicial decision given while the appeal is pending before the Tribunal, it is found that a non-taxable item is taxed or a permissible deduction is denied, we do not see any reason why the assessee should be prevented from raising that question before the tribunal for the first time, so long as the relevant facts are on record in respect of that item . Answering the question posed before it in affirmative, their Lordships held that on the facts found by the authorities below a question of law arises (though not raised before the authorities) which bears on the tax liability of the assessee and the Tribunal has jurisdiction to examine the same. We find that both the additional grounds raised before the Tribunal involve pure questions of law and no fresh investigation of facts is necessary for their determination. We are, therefore, admitting such additional grounds to be espoused for disposal on merits. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from the date of last hearing. Consequences of passing orders beyond the stipulated period of 15 days have not been spelt out in these instructions, except for mentioning that: Any lapse on this account shall be viewed adversely . There may be certain administrative action upon the CIT(As) who pass orders belatedly, but how does it affect the validity of the order in the eyes of law is not borne out of such Instructions. Further, nothing has been brought to our notice indicating initiation of any disciplinary action against the ld. CIT(A) for the alleged delay in passing the impugned order. 8. Be that as it may, we find that the contention of the assessee about the late passing of the impugned order by the ld. CIT(A) in July, 2013 as against the conclusion of hearing in March, 2013, is unfounded. Shri A.S. Singh, CIT(A)-II, Pune vide the aforesaid letter dated 08-09-2014 has stated that the impugned order was passed on the date mentioned in the order itself, namely, 25-03-2013. Further, this order was reported by him as one of the best appellate orders passed by him in March, 2013 in the monthly D.O. letter sent to the Chief Commissioner of Income Tax, Pune (CCIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office. Our attention has been drawn towards one of such letters dated 13-07-2013, which bears the receipt stamp with date 12-07-2013. In the affidavit also, the assessee has stated that he filed a letter on 12-07-2013. Though there is difference in the dates, we agree with the ld. AR that mentioning of date as 13-07-2013 on the letter may be a typographical error and the same might have actually been delivered in the office of ld. CIT(A) on 12-07-2013. The assessee stated before this Tribunal that he personally met Shri A.S. Singh, CIT(A)-II, Pune on the given date and it was only on his advice that his office accepted the aforesaid letter on 12-07-2013. The assessee also stated that he met Sh. A.S. Singh, the ld. CIT(A) on 19-07-2013 and filed a similar letter for the A.Y. 2008-09 which also met with the same fate. 11. We have gone through the record called from the office of the CIT(A). The letter filed by the assessee in the office of CIT(A) on 12-07-2013 has been initialled by one H.S. with remarks Sr. TA. The ld. DR explained that H.S. refers to Shri Hareshwal Sharma, CIT(A)-I, Pune, who was holding additional charge at the material time in the absence of Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e advanced, a contention with which we do not actually agree, a fortiori which would follow is that the assessment order would revive in the absence of there being any valid first appellate order. It would again require direction from our end to the ld. CIT(A) to pass an order as the appellant urging the quashing of the impugned order in this case is the assessee and the impugned order has been passed against him. Further, on a specific query as to how the assessee was prejudiced by the supposed antedating of the impugned order in terms of either some limitation setting in or the right to file appeal against it being jeopardized, the ld. AR candidly admitted that no such legal right of the assessee was impaired. 15. In view of the foregoing discussion, we hold that the allegation levelled by the assessee that the impugned order was antedated by the ld. CIT(A), is not correct and is hereby rejected. The first additional ground is, ergo, dismissed. 16. Through the second additional ground, the assessee has challenged the non-service of notice u/s.143(2) of the Incometax Act, 1961 (hereinafter also called the Act ) within the prescribed time limit. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n issued on or before 30-09-2010 enabling the AO to proceed with the assessment u/s. 143(3) of the Act. The AO has referred to two notices u/s. 143(2) dated 08-09-2010 and 11-11-2011. It is obvious that the second notice u/s. 143(2) dated 11-11-2011 is of no consequence as having been issued after a period of six months from the end of the relevant assessment year. Now we need to find out as to whether notice u/s. 143(2) dated 08-09-2010 was actually issued and served on the assessee on or before 30-09-2010. 18. As against the mentioning in the assessment order of the issue and the service of notice u/s. 143(2) dated 08-09-2010 on the assessee, the ld. AR contended that such notice was never served. The ld. DR was requested to place on record the evidence of service of notice. She invited our attention towards an envelope containing notice u/s.143(2) dated 08-09-2010 which was issued but returned by the postal authorities with remarks recorded on 27-09-2010 that the addressee is not living at the given address and the further address is not known. On a perusal of such envelope, it is observed that the notice was sent to the assessee at the address 39/11, Budhwar Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Department has in substance the net effect of non-issuance of notice. ii. Whether issue of notice is equal to service of notice ? 21.1. The next leg of the argument of the ld. DR was that once it was established that the notice u/s 143(2) was admittedly issued before the close of the stipulated period of six months from the end of the relevant assessment year, which is further evidenced from the fact that the same was returned by postal authorities, then such issue of notice should be considered as service of notice. For this proposition, she relied on V.R.A. Cotton Mills (supra). 21.2. We have gone through the judgment in the case of V.R.A. Cotton Mills (supra) in which it has been clearly laid down that the date of notice as required to be served u/s.143(2) is to be considered as the date of issue of notice by the AO, which supports the view point of the ld. DR . In reaching this conclusion, the Hon ble High Court relied on the judgment of the Hon ble Supreme Court in Banarasi Devi Vs. ITO (1964) 53 ITR 100 (SC) and dissented with its own judgment in CIT Vs. Avi- oil India Pvt. Ltd. (2010) 323 ITR 242 (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ble Delhi High Court in Lunar Diamonds Ltd. (supra) held that the judgment in the case of Banarasi Devi Vs. ITO and others (supra) cannot be applied as it was rendered in the backdrop of section 4 of the Amendment which is not now relevant. 21.5. The Hon ble Gujarat High Court in Pr. CIT Vs. Nexus Software Ltd. (2017) 248 taxmann 243 (Guj.) also dealt with a similar situation, in which the Revenue once again relied on the judgment of the Hon ble Punjab Haryana High Court in V.R.A. Cotton Mills (supra) . The Hon ble High Court observed that : However, we are not in agreement with the view taken by the Punjab Haryana High Court that the expressions serve and issue would have the same meaning . The word served used in Section 143(2) of the Act is very significant and very clear. 21.6. The ld. DR also relied on the judgment of Hon ble Supreme Court in the case of Madan Co. vs. Wazir Jaivir Chand 1989 AIR 630 (SC) to bolster her argument that a registered letter addressed to the person at his residential address shall be deemed to be served. We do not find any relevance of the judgment in Madan Co. (supra) to the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii. Whether the notice can be considered as served by post? 22.1. The ld. DR then contended that sending of notice through registered post satisfies the requirement of service and there is no further need to examine, if it was actually served on not. For this proposition, she relied on certain provision, which we will be shortly referring to. 22.2. Section 282 of the Act has caption Service of notice generally . Sub-section (1) provides that : The service of a notice or summon or requisition or order or any other communication under this Act (hereafter in this section referred to as communication ) may be made by delivering or transmitting a copy thereof, to the person therein named,-(a) by post or by such courier services as may be approved by the Board; or . The term service by post has not been specifically defined in the Act. Thus, we will have to go by the meaning of this expression given in the General Clauses Act, on which the ld. DR has laid a great deal of emphasis. 22.3. Section 27 of the General Clauses Act, 1897, deals with the meaning of service by post . It states that: Where any (Central Act) or Regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted. Whereas sub-clause (i) refers to address available in the PAN database of the addressee, sub-clause (ii) refers to the address available in the income-tax return to which communication relates; sub-clause (iii) refers to the address available in the last income-tax return furnished by the addressee; and sub-clause (iv) refers to address of registered office of a company as available on the website of Ministry of Corporate Affairs. This shows that a notice etc. can be delivered to an assessee at any of the addresses given in rule 127(2)(a) which, inter alia, include address available in the PAN and also the address available in the income-tax return. It means that if a notice etc. is delivered at the address given in PAN, even if such address is at variance with the address given in the income-tax return, it shall be considered as a valid delivery of notice. What emerges from rule 127 is that it simply provides different addresses of the assessee at which a notice etc. can be delivered or in other words served. This rule does not dispense with the otherwise legal requirement of serving the notice. Its effect is limited to the extent that if a notice etc. is delivered or s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. This section was inserted by the Finance Act, 2008 w.e.f. 01-04-2008 and thus covers the assessment year/proceedings under consideration. It provides that where an assessee appears in any proceedings and co-operates in an inquiry relating to the assessment etc., it shall be deemed that any notice issued under any provisions of this Act, which is required to be served, has been duly served upon him as per law. When it is so, the assessee shall be prohibited from taking any objection in any proceedings that the notice was not properly served upon him. The proviso to this section states that if an assessee raises an objection before the completion of assessment that the notice was not properly served, then the provision deeming a proper service on attending the assessment proceedings etc., shall not apply. Further, what is relevant to note is that this section dispenses with the requirement of service of notice in the given circumstances and not the issue of notice. If a particular provision requires issue of notice within a stipulated period and no notice is actually issued, even though the requirement of service of notice will stand satisfied with the assessee attending the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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