9911796707
TMI Blog2021 (12) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... o be quashed. (b) That the learned C.I.T. has failed to appreciate that in view of the affidavit filed denying the receipt of statutory notice u/s 143(2) of the I.T. Act dispatched on 22-08-2009, it was for the revenue to prove service and rejection of the claim holding the same to be mere bald assertion, on the facts and circumstances of the case, is wholly unwarranted, arbitrary and liable to be set aside. The learned CIT (A) has further failed to appreciate that subsequent notices issued u/s 142(1) of the I.T. Act are not the substitute for section 143(2) of the I.T. Act and can not validate the assessment and the impugned assessment order was liable to be quashed. 2. That holding of the agricultural land by the appellant not having been doubted and agricultural income from such agricultural land having been declared in other assessment years and accepted by the Department, there was no justification with the authorities below to treat the agricultural income declared at Rs. 3,82,300/- as unexplained income. 3. That the authorities below have failed to appreciate that gross receipts disclosed at Rs. 34,82,191/- represented part of the gross receipts of Rs. 2,31,04,460/- re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration as available in the AIR sheet. Such anapproach of the authorities below is wholly unwarranted, arbitrary and the impugned addition of Rs. 1,11,60,072/- is liable to be deleted. 6. That the order of the CIT (A) is bad in law and against the facts of the case. " 3. The facts in brief are that assessee is an Individual and he had filed his return of income at Rs. 17,06,596/- on 22.07.2008. It was duly processed under section 143(1) of the Income Tax Act, 1961 (the Act) on 25.09.2009 on the same income. Thereafter assessee's case was selected for scrutiny and notice under Section 143(2) of the Act dated 19/21.08.2009 was issued. The main issue challenged here in this case is, whether the notice issued by the Assistant Commissioner of Income Tax, Circle: 1, New Delhi under Section 143(2) dated 19/21-8-2009 was served upon the assessee or not. From the record placed before us, it is seen the notice was dispatched to the assessee on 22-8-2009 at the address "1417/3,Gali No. 7, Rajiv Nagar, Gurgaon". However, the said address was not mentioned in the return of income filed by the assessee on 22-7-2008 for the assessment year 2008-09. The address as per the return of income was, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee for the past several years since the assessment year 2005-06 have been filled at the address E- 914,Chittranjan Park, New Delhi. A photocopy of the last 3 years acknowledgement of the Income Tax Return was enclosed. In the Paper book the PAN had also been taken on this very address, which was subsequently changed to Gurgoan address in Nov. 2014. He submitted the mechanism of service of notice at the address available in the PAN database of the assessee was only made applicable with the introduction of Rule 127 by the Income Tax (18th Amendment) Rules, 2015 w.e.f. 2nd Dec. 2015. 4.2 The plea of the department that since the notice has not been received back, it is presumed to have been served is a rebuttable presumption particularly when an affidavit has been filed at the outset denying the service of notice. The onus shifts to the department to prove that the notice u/s 143(2) has been served on the assessee, or by the postal remarks that the assessee has refused to take the notice or has left the premises without any address. 4.3 Ld. Counsel thus submitted that, firstly, the notice has not been correctly addressed as per the return of income and also not sent by Regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days of its issuance, there was a presumption under law that said notice had been duly served upon assessee within period of limitation. " 6. We have heard the rival submissions and also perused the relevant material placed on record qua the issue of service of notice under Section 143(2) of the Act. From the perusal of the Income tax return filed for the assessment year 2008-09 and even the earlier returns for assessment years 2005-06 to 2007-08, copies of which have been placed before us, it is seen that the address mentioned by the assessee all through-out has been E-914,Chittranjan Park, New Delhi. From the perusal of the notice under Section 143(2) of the Act placed in the paper book filed by the Department, it is seen that the notice has been addressed and sent to the following address:- "SHRI SUKH PAL CHAUDHARY 1417/3, Gali No. 7, Rajiv Nagar, Gurgaon, HARYANA." 6.1 This notice admittedly has not been complied with which has been mentioned by the Assistant Commissioner of Income Tax, Circle : 1, New Delhi, himself in para 2, which for the sake of ready reference is reproduced hereunder:- " Notice under Section 143(2) of the Income Tax Act, 1961 for the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at (the address provided in the return of income namely E-914, Chittaranjan Park, New Delihi , and at the address obtained from the AIR information sheet of Gali No 7, Rajiv Nagar, Gurgaon. On one occasion, the notice is stated to have been served in person at his Gurgaon address. The appellant has relied on a number of case laws in support of his claim of non service of notice under section 143(2). However, the cited judgements have been rendered in specific sets of facts, such as service of notice beyond the Sukhpal Choudhary Appeal No. 321/10-11 A. Y. 2008- 09stipulated period, service of notice by regular post instead of registered post, denial by affidavit, etc. In this case, the appellant has filed an affidavit that he has not received a single notice issued under section 143(2). However, no possible explanation has been provided as to why notices admittedly issued at the correct addresses of the appellant were never received by him. From the assessment order, it is seen that no less than seven notices were issued by the Assessing Officer. The original notice under section 143(2) dated 21.8.2009 was issued by speed post on 22.8.2009, of which the acknowledgement is available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat no notice under this sub Section shall be served on the assessee after expiry of six months from the end of the financial year in which the return is furnished]. " Ergo, it is mandatory that notice u/s 143(2) has to be served on the assessee within the statutory time limit if he considers that there is any under-statement of income etc. in the return filed by the assessee. Thus, the Assistant Commissioner of Income Tax, Circle : 1, New Delhi, if he is scrutinizing the return of income then, if he considers necessary to vary the return income then he is suppose to send the notice and it is on the address mentioned in the return of income and that to be within the time prescribed under the first provision. If such a statutory requirement is not complied with, then the resultant effect is that assessment order itself is bad in law. This has been held so by the Hon'ble Jurisdictional High Court in the case of CIT Vs. Hotline International Pvt. Ltd. (supra) and in CIT V. Lunar Diamonds Ltd. (supra). 11. The Hon'ble Delhi High Court in the case of CIT Vs. Lunar Diamonds Ltd. (supra) held that the burden is on the revenue to prove that notice was served within time and when assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
