2010 (12) TMI 418 - AT - Income Tax

Notice u/s 143(2) - Service of notice - The AO shall first decide the issue regarding service of notice - In case it is established that notice has duly been served upon the assessee then only he shall proceed to examine the other issues on merits - If the AO arrives at a conclusion that letter for service of notice was addressed to wrong premises then he shall drop the proceedings - It is needless to say that whatever observations have been made by us are regarding bringing the point at home whether proper notice was served on the assessee or not - They should not be considered as an expression of opinion on the merits - They will not impair or injure the case of the AO or would not cause any prejudice to the defense/explanation of the assessee - Hence the appeal of the assessee is allowed for statistical purposes.

Summary

Issues: Jurisdiction of AO under sections 144 and 115WE, Service of notice u/s 143(2) and 115WE(2), Disallowances in ex-parte assessment

Jurisdiction of AO under sections 144 and 115WE:
The appellant challenged the jurisdiction of the Assessing Officer (AO) in passing the order under sections 144 and 115WE for the assessment year 2006-07. Initially, the appellant contended that the AO erred in assuming jurisdiction under these sections and making certain additions. The appellant later filed revised grounds of appeal specifically targeting the assessment orders passed under sections 144 and 115WE. The main grievance was the alleged non-service of notices u/s 143(2) and 115WE(2) within the stipulated time, rendering the assessment order null and void. The appellant argued that the notice was not served at the correct address, while the Department contended that the notice was sent to the address provided in the return. The Tribunal noted discrepancies in the address mentioned in the notice and a letter, raising doubts about the actual service of the notice. Consequently, the Tribunal set aside the issue for fresh adjudication by the AO, directing a report from postal authorities to determine the actual delivery of the notice.

Service of notice u/s 143(2) and 115WE(2):
The crux of the matter revolved around the service of notice u/s 143(2) and 115WE(2) on the appellant within the prescribed timeline. The appellant argued that the notice was not served at the correct address, while the Department maintained that the notice was sent to the address provided in the return. Discrepancies in the address mentioned in the notice and a letter led the Tribunal to doubt the actual service of the notice. The Tribunal directed the AO to obtain a report from postal authorities to ascertain the delivery status of the notice, emphasizing the importance of determining whether proper notice was indeed served on the appellant.

Disallowances in ex-parte assessment:
The Tribunal noted that the disallowances were made in an ex-parte assessment order, which necessitated a reevaluation due to the unresolved issue of notice service. Consequently, the Tribunal remanded these issues back to the AO for fresh adjudication, emphasizing that the AO must first determine the validity of the notice service. If the notice was deemed properly served, only then could the AO proceed to examine the disallowances on merits. The Tribunal clarified that its observations were solely focused on the service of notice and should not be construed as an opinion on the merits, ensuring that neither party's position was prejudiced.

In conclusion, the Tribunal allowed the appeal of the appellant for statistical purposes, highlighting the need for a comprehensive reevaluation by the AO regarding the service of notices and subsequent assessment decisions.