TMI Blog2004 (5) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act within the time specified in the proviso to the said section is taken up for consideration as a preliminary issue. The grounds of appeal raised by the assessee in this regard reads as follows: That on the facts and circumstances of the case and in law, the learned CIT(A) has erred in holding that there was proper service of the notice dated 27-9-2002 issued by the ld. Assistant Commissioner of Income-tax, Circle 13(1), New Delhi ( the AO ) under section 143(2) of the Income-tax Act, 1961 ( the Act ). 2.1 That on the facts and circumstances of the case, the learned CIT(A) has erred in, relying upon the remand report of the learned Assessing Officer for the purposes of adjudication of the subject-matter. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, which is framed without a proper service of notice within the time limit specified under section 143(2) is invalid. It is in this context that the case of the assessee has to be examined. For better understanding the relevant provisions of section 143 are reproduced: 143. Assessment.-(1) Where a return has been made under section 139, or in response to a notice under sub-section (1) of section 142,- (i) if any tax or interest ... (2) Where a return has been furnished under section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer shall,- (i)where he has reason to believe that any claim of loss, exemption, deduction, allowance or relief made in the return is inadmissibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (ii) of sub-section (2), or as soon afterwards as may be, after hearing such evidence as the assessee may produce and such other evidence as the Assessing Officer may require on specified points, and after taking into account all relevant material which he has gathered, the Assessing Officer shall, by an order in writing, make an assessment of the total income or loss of the assessee, and determine the sum payable by him or refund of may amount due to him on the basis of such assessment. 4. The assessee claims that it had raised objection before the Assessing Officer that the first notice dated 27-9-2002 under section 143(2) was never served on the assessee and that no valid order of assessment can be framed. In the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground was raised for the first time before CIT(A) would go to show that notice had been received by the assessee within the statutory period. the CIT(A) agreed with this submission of the Assessing Officer and dismissed this Ground of appeal raised by the assessee. 5. We have heard the learned counsel for the assessee as well as the learned DR. We find from the records that the assessee raised this ground of appeal for the first time before the CIT(A). The assessee filed before the CIT(A), the postal receipt evidencing dispatch of the first notice under section 143(2) by registered post to the assessee only on 30-9-2002. The assessee had filed before the CIT(A) a letter dated 28-7-2003 from the Malviya Nagar Post Office, wherefro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the letter would be delivered in the ordinary course of post. 7. It cannot be said that a letter by registered post dispatched for service on 30-9-2002 would reach the addressee on the very same. day. In the absence of evidence of actual date of service on the assessee the presumption to be drawn is that the letter would be delivered in the ordinary course of post. In the ordinary course the letter would be delivered on the third or fourth day. On identical facts this Tribunal in the case of Adarsh Traders v. Asstt. CIT [IT Appeal No. 2775 (Delhi) of 1998, dated 24-10-2002], after considering the provisions of section 27 of the General Clauses Act, 1897 has held that there can be no presumption of service of notice on the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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