TMI Blog2007 (9) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... ith Ms. Kavita Jha and Mr. Prabhan Sharma, for the respondents. JUDGMENT The judgment of the court was delivered by MADAN B. LOKUR, J - 1. The Revenue is aggrieved by an order dated 23 rd December, 2005 passed by the Income Tax Appellate Tribunal in ITA No. 3764/Del/2001 for the assessment year 1997-98. 2. Admit. 3. After hearing learned counsel for the parties, the following substantial question of law is framed for consideration: - "Whether the Income Tax Appellate Tribunal was correct in law in holding that the assessment framed by the Assessing Officer under Section 143 (3) of the Income Tax Act, 1961 was without jurisdiction as no notice under Section 143 (2) was served on the assessee within the prescribed time?" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee flatly denied receipt of the notice dated 9 th October, 1998 by the assessee. It is true that the assessee received a notice dated 28 th February, 2000 on 1 st March, 2000 and in compliance with that notice, the Manager (Finance) along with the General Manager (Finance) of the assessee attended the proceedings before the Assessing Officer on 7 th March, 2000. 9. Learned counsel for the assessee submits that the filing of the affidavit amounts to an effective rebuttal of the presumption of service under Section 27 of the General Clauses Act. He further submits that in the appeal filed by the assessee before the Commissioner of Income Tax (Appeals), a ground has been taken to the effect that no notice dated 9 th October, 1998 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e any submission before the Assessing Officer to the effect that they had not been served with any notice prior to the notice dated 28 th February, 2000. Of course, the assessee had come to know of the notice dated 9 th October, 1998 because it raised a plea before the CIT (A) that it was not served with any notice within the prescribed time. Despite this, no objection was taken before the Assessing Officer, and even before the CIT (A) the assessee did not file any affidavit to rebut the statutory presumption of service. The affidavit denying service of notice was filed by the assessee only before the Tribunal. 12. In our view the Tribunal erred in placing reliance upon the affidavit filed rather belatedly to come to the conclusion th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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