2012 (10) TMI 207 - AT - Income Tax

Validity of assessment framed u/s 143(3) assessee contesting order on ground of notice being issued on 22.12.07 after the expiry of 12 months from the end of the month in which the return of income was filed i.e. 28.11.06 whereas Revenue contended notice being issued within the prescribed limitation on opinion of it being first issued on 12.10.2007 by speed post Held that - Section 27 of the General Clauses Act contains a presumption that where any Central Act requires any document etc. to be served by post, then the service shall be deemed to be effected where the envelope is properly addressing, proper stamps affixed thereon and posted by registered post, and unless the contrary is proved, the service is deemed to have been effected at the time at which the document would be delivered in the ordinary course of post. In view of this provision, a presumption arises that the notice has been served on the assessee within 2-3 days of posting. In present case, it is not the case that there is no office copy of this notice or that the notice was not addressed properly, or notice has been received back. Furthermore, the corresponding address on the said notice was same as on which subsequent notice u/s. 142(1) was complied with and it is held that the notice has been duly served on the assessee. Since, CIT(A) has not decided the merits of this case, we remit the issues on merits of the case of the files of the CIT(A).

Summary

Issues involved:
1. Validity of the notice u/s. 143(2) served within the prescribed time frame.
2. Compliance with legal requirements for notice issuance and service.

Detailed Analysis:
Issue 1: Validity of the notice u/s. 143(2) served within the prescribed time frame
The appeal by the Revenue challenged the order of the Ld. Commissioner of Income Tax (Appeals)-IV, New Delhi, regarding the assessment year 2006-07. The Assessing Officer contended that the notice u/s. 143(2) was sent by speed post on 10.10.2007, within the prescribed limitation period. However, the Ld. Commissioner of Income Tax (A) noted that there was no evidence of the service of the notice, which is a legal requirement. The Ld. Commissioner referred to relevant case law and concluded that the assumption of jurisdiction for issuing the order u/s. 143(3) was not in accordance with the law due to the lack of evidence of notice service.

Issue 2: Compliance with legal requirements for notice issuance and service
The Ld. Commissioner of Income Tax (A) emphasized the necessity of serving the notice u/s. 143(2) within 12 months from the end of the month in which the return of income was filed. The Assessing Officer admitted the absence of evidence of service despite the assessee's persistent claims. The Ld. Commissioner held that the provision of section 292BB, which could validate certain procedural irregularities, was not applicable for the relevant assessment year. Consequently, the Ld. Commissioner ruled in favor of the assessee, stating that the assumption of jurisdiction for issuing the order u/s. 143(3) was not in accordance with the law due to the lack of evidence of notice service.

Separate Judgment:
The Tribunal, upon considering the contentions and records, found that the notice u/s. 143(2) dated 12.10.2007 was validly posted and served, as evidenced by the acknowledgment from postal authorities. The Tribunal applied the presumption of service as per Section 27 of the General Clauses Act and referred to established procedures for handling communications. Despite the assessee's arguments based on case laws, the Tribunal upheld the validity of the notice service, following the precedent from a Co-ordinate Bench. As the Ld. Commissioner of Income Tax (A) did not decide on the case's merits, the Tribunal remitted the issues for further consideration.

In conclusion, the Tribunal allowed the Revenue's appeal, emphasizing the valid service of the notice u/s. 143(2) and remitting the case for a review of the merits by the Ld. Commissioner of Income Tax (A).