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2014 (4) TMI 858 - HC - Income TaxService of notice to proper person Order u/s 143(2) of the Act Onus to prove - Held that - Sashi Prakash Khemka had been consistently representing the case of the assessee and he had also acknowledged the receipt of the notices, photocopy of the acknowledgement for the service of notice and there being no denial by the assessee that the Sashi Prakash Khemka was representing the interests of the assessee before the Income Tax Authorities - it is too late in the day for the assessee to state that the service of notice was not on a proper person. The burden is on the assessee to show that the person who received the notice was not an authorised representative - even in the absence of a written authorisation, when in all the earlier proceedings, the assessee was represented by a particular person and all action had been taken based on the representation of the said person and the said person alone was representing the interest of the assessee, it is not open to the assessee in future to contend that there was no authorisation on such person to represent the case of the assessee. Non-production of original files Held that - Inspite of earnest efforts made by the revenue, they could not get the original records and only photocopy of the acknowledgement was produced before the Tribunal - the acknowledgement in photocopy produced before the Tribunal was not denied by the assessee as not pertaining to the assessee - the photocopy could only be of the secondary evidence on the service of notice, yet when there was no denial from the assessee as regards the photo copy of the acknowledgement as relatable to the assessee s case and that in subsequent communication between the assessee and the Revenue, the notice sent by the Revenue was also acknowledged by the said Sashi Prakash Khemka, the contention of the assessee that there was no proper service on the assessee can only be seen as an afterthought to wriggle out of the assessment proceedings thus, the order of the Tribunal is set aside Decided in favour of Revenue.
Issues:
1. Validity of notice under section 143(2) for assessment year 1994-95 2. Service of notice at the correct address 3. Impact of family dispute on receipt of notice 4. Burden of proof on the Assessing Officer 5. Authority of representative to receive notice Issue 1: Validity of notice under section 143(2) for assessment year 1994-95 The High Court considered the appeal against the Income Tax Appellate Tribunal's decision to quash the assessment for the assessment year 1994-95 due to a notice under section 143(2) not being served within the statutory time limit. The Court examined the service of notice and the objections raised by the assessee's representative, ultimately concluding that the notice was validly served based on the address provided by the assessee in her return. The Court held that the service was proper and rejected the contention that the notice was not validly served. Issue 2: Service of notice at the correct address The Court analyzed the service of notice under Section 143(2) and the objections raised by the assessee regarding the address where the notice was served. The Court found that the notice was served at the address given in the return of income, and the assessee failed to notify any change of address. The Court held that the notice was properly served at the known address of the assessee, and the contention of improper service was rejected. Issue 3: Impact of family dispute on receipt of notice The Court considered the impact of a family dispute on the receipt of the notice under Section 143(2). The assessee contended that due to a family dispute, the notice did not reach her, leading to the cancellation of the assessment. However, the Court found that the notice was served on a person who regularly received notices on behalf of the assessee and other family members. The Court held that the family dispute did not invalidate the service of notice. Issue 4: Burden of proof on the Assessing Officer The Court examined whether the Assessing Officer had fulfilled the burden of proof regarding the service of notice. The Court noted that the Assessing Officer had served the notice within the period of limitation at the address provided by the assessee. The Court held that the Assessing Officer had properly served the notice, and the contention of improper service was unfounded. Issue 5: Authority of representative to receive notice The Court assessed the authority of the representative who received the notice on behalf of the assessee. The Court found that the representative had consistently represented the assessee's interests in previous proceedings and acknowledged the receipt of notices. The Court held that the representative was authorized to receive the notice, and the assessee could not later dispute the authorization. In conclusion, the High Court allowed the Tax Case (Appeal) filed by the Revenue, setting aside the decision of the Income Tax Appellate Tribunal regarding the service of notice on the assessee for the assessment year 1994-95.
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