TMI Blog2020 (10) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited Company and is in the business of real estate. Return of Income for the assessment year under consideration was filed by assessee company wherein the taxable income was declared at ₹ 2,96,34, 780/-. Assessment in this case was completed under section 143(3) of the Income Tax Act, 1961 (hereinafter called the Act ) wherein the income was assessed by the Assessing Officer (AO) at ₹ 3,53,02,460/- after making certain additions and disallowances. 2.1 Aggrieved, the Assessee filed an appeal before the Ld. CIT (A) who dismissed the appeal of the assessee vide order dated 14.03.2017 and against the said order of learned CIT (A), an appeal is now being preferred by the Assessee Company before this Tribunal. The following grounds have been raised by the assessee: 1. Whether on the facts and in the circumstances of the case the learned lower authorities has grossly erred in law and on facts in passing and in confirming the order u/s 143(3) of the Act by ignoring the fact that the first notice u/s 143(2) of the Act was not served upon the assessee within the time limit prescribed under the Act. i.e. on or before 30th September 2013 as such the assessment proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar under consideration. 6. Whether on the facts and in the circumstances of the case the learned lower authorities has grossly erred in law and on facts in holding that the interest income amounting to ₹ 20,73,047/- was assessable under the head income from other sources instead of income from business by ignoring the various facts and evidences etc. on record. The learned CIT (A) further erred in law and on facts by ignoring the fact that the assessing officer has neither raised any query to this effect nor any clarification was sought nor any show cause notice was issued nor any reasons were given by the assessing officer for assessing the interest income under the head income from other sources instead of income from business. 7. Whether on the facts and in the circumstances of the case the learned CIT (A) erred in not considering the decision of the Hon ble Delhi High Court in the case of Snam Progetti S.P.A. Vs. Additional Commissioner of Income Tax, New Delhi 132 ITR 70 (Del) where in it was held that interest earned from bank deposit was business income and further it was categorically held the interest from bank deposit was also a business income for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Ld. Counsel for the Assessee further, argued that right from Assessment Year (AY) 2008-09 onwards, the assessee had been filing its return of income at its new address i.e. 11/2A, Pusa Road, Karol Bagh, New Delhi 110005. It was further, argued by the learned counsel that even the Revenue in AY 2009-10 had, while processing the return of income under section 143(1) of the Act, issued the same at the new address (placed at page 45 of the paper book). Thus, it was argued by the learned counsel of assessee that the Revenue was aware about the new address of the assessee but still the notice under section 143(2) of the Act was issued on 23.09.2013 at the old address i.e. A 46, IInd Floor, Vasant Marg, Vasant Vihar, New Delhi (placed at page 78A of the paper book), which was never served on the assessee. It was further submitted that, however, the AO, in the remand report dated 17.01.2017 furnished before learned CIT (A), had submitted that the said notice was personally served on the assessee company. In this regard, the learned counsel for the assessee further submitted that the assessing officer has not enclosed the report of the process server to support the fact that the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittedly, ground no. 1 is a legal ground which goes directly to the root of the matter and the same is being taken up first. It is challenging the validity of the assessment as notice under section 143(2) of the Act was not served on the assessee company within the stipulated time prescribed under the Income Tax Act, 1961. On going through the paper book filed by the assessee company, it becomes evident that the return of income was filed by the assessee company on 27.09.2012 (placed at page 1 of the paper book) wherein the address of the assessee is mentioned as 11/2A, Pusa Road, Karol Bagh, New Delhi 110005. Further, it is uncontroverted that the assessee had, vide letter dated 06.06.2008, intimated the AO, regarding the said new address of the assessee. The said letter was referred to and is placed at page 44 of the paper book. On further going through the paper book, it is seen that from AY 2008-09 onwards, the assessee had been filing its return of income at the new address i.e. 11/2A, Pusa Road, Karol Bagh, New Delhi 110005 and that even the Revenue, in AY 2009-10, had processed the return of income under section 143(1) of the Act at the new address (placed at page 45 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urned unserved, would be to no avail since the address given in the notice was not the last known address of the Assessee. 9. Mr. Sahni then submitted that it was incumbent on the Assessee to have got his changed address entered in the PAN Data Base failing which the AO would only go by the address given in the record of the relevant AY which in the case is AY 2001-02. 10. The Court is unable to agree with this submission. No provision in the Act has been shown to the Court which obliges the Assessee to ensure that his changed address is entered in the PAN Data Base failing which he is precluded from insisting on the notice under Section 148 being issued to him at the known address and being served upon him. In the present case, on facts, it is not in dispute that the AO was aware of the change of address of the Assessee and yet the notice under Section 148 of the Act was issued at the older address. 11. Mr. Sahni submitted that the order of the CIT (A) notes the fact that a photocopy of the notice was given to the Assessee during the re-assessment proceedings and that by itself should constitute sufficient service of notice on the Assessee. In light of the law explained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the new address of the assessee. Thus, the assessment so framed by the AO is bad in law on this count also and in reaching this said finding, reliance is placed on the following case laws: (i) CIT vs Chetan Gupta (Delhi HC) reported in 382 ITR 613. Onus on Revenue to prove service of notice 34. There is sufficient judicial authority for the proposition that the burden of showing that service of noticed has been effected on the Assessee or his duly authorized representative is on the Revenue. These include Fatechand Agarwal v. CWT [1974] 97 ITR 701 (Ori.) and Venkat Naicken Trust v. ITO [1999] 107 Taxman 391/[2000] 242 ITR 141 (Mad). In CIT v. Thayaballi Mulla Jeevaji Kapasi [1967] 66 ITR 147 (SC), the Respondent to whom the notice was directed was not in town. The only information which the process server had was that the Respondent was either in Bombay or Ceylon. Thereafter, the process server affixed the notice on the business premises of the Respondent. The Supreme Court affirmed the essential principle that if no notice was served within the period, the Income-tax Officer was incompetent to commence proceedings for reassessment under Section 34 of 1922 Act. It was f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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