2016 (3) TMI 114 - AT - Income Tax

Validity of service of notice - modes of service of notice - assessee submitted that the notice alleged to be sent by the speed post at the address of the assessee, was not served - Held that - The onus to communicate the correct address or change of address to the Department either applying through prescribed form for making correction in permanent account number (PAN) database or communication to the Assessing Officer was on the assessee, which the assesses failed to do so. The notice u/s 143(2) of the Act for selection of case under scrutiny in the case of assessee has been generated through the income tax department application software, in which address has been picked up from PAN database and the notice was sent by the Income Tax Officer before the limitation of service of notice i.e. more than two months prior to the limitation. In the present case, the fact of change of address by the assessee has not been highlighted and therefore, the facts of the present case are different from the facts of the cases cited by the assessee. In view of change of place, the assessee himself is responsible, if at all the notice was not received by him at the old address. In the circumstances, the assessee failed to rebut the presumption of valid service. The assessee has failed to rebut the presumption that was raised against him about the due service of the notice u/s 143(2) of the Act. Hence, we hold that the Assessing Officer has complied the requirement of service of notice under Section 143(2) of the Act and notice dated 21.07.2008 was served validly. - Decided against assessee Jurisdiction of Income Tax Officer to issue notice - Held that - Income Tax Officer was in addition to the income or class of income specified in schedule was also authorized in respect of all income or class of income. In view of clear position of the authority of the Income Tax Officer in issuing notice, the claim of the assessee that the Income Tax Officer was not having jurisdiction is without proper appreciation of the facts and thus the ratio of the case law relied upon by the assessee is not applicable over the facts of the case in hand, hence, this grounds of the assessee is dismissed. - Decided against assessee Transfer of case - whether no order under Section 127 of the Act transferring the case to the Addl. Commissioner of Income Tax in exercise of the concurrent jurisdiction vested in her? -Held that - DR has submitted that the Addl. Commissioner of Income Tax was provided concurrent jurisdiction over the cases through the order of the Commissioner of Income-tax and, therefore, no separate order under section 127 of the Act was required to be passed by the Commissioner of Income-tax. However, no such order of the Commissioner of income-tax conferring the concurrent jurisdiction to the Addl. Commissioner of Income-tax over the cases of the Income-tax Officer is either available on assessment record, or was produced before us by the Revenue. Thus, in absence of any such order, it can t be established that said assessment order passed was within the jurisdiction of the Addl. Commissioner of Income-Tax. Thus, we hold that the assessment completed by the Additional Commissioner of Income-tax in the case being without jurisdiction, is void ab initio - Decided in favour of assessee

Issues Involved:
1. Validity of service of notice under Section 143(2) of the Income Tax Act.
2. Jurisdiction of the Income Tax Officer to issue notice under Section 143(2).
3. Validity of assessment order passed by the Additional Commissioner of Income Tax without an order under Section 127.
4. Disallowance of business loss and deduction of property tax (not pressed by the assessee).

Detailed Analysis:

Issue 1: Validity of Service of Notice under Section 143(2)
The assessee contended that the notice issued on 21.07.2008 by the Income Tax Officer (ITO), Ward 19(4), was not served. The ITO relied on Section 27 of the General Clauses Act to presume service, while the assessee denied receipt via affidavit. The Tribunal referenced various judicial pronouncements, including CIT Vs. Silver Streak Trading P. Ltd. and CIT Vs. Messrs Lunar Diamonds Ltd., which placed the onus on the Revenue to prove actual service. However, in this case, the Revenue provided proof of dispatch through speed post and the notice was not returned undelivered, creating a presumption of valid service. The Tribunal held that the assessee failed to rebut this presumption effectively, noting the change of address not communicated to the Income Tax Department. Consequently, the Tribunal dismissed this ground, affirming the service of notice as valid.

Issue 2: Jurisdiction of the Income Tax Officer to Issue Notice
The assessee argued that the ITO, Ward 19(4), lacked jurisdiction to issue the notice as per the jurisdiction order dated 31.03.2006. The Tribunal examined the order, which authorized the ITO to exercise powers over all incomes or classes of income. Thus, the Tribunal concluded that the ITO had the jurisdiction to issue the notice, dismissing the assessee's claim.

Issue 3: Validity of Assessment Order by Additional Commissioner without Order under Section 127
The assessee challenged the validity of the assessment order passed by the Additional Commissioner of Income Tax, arguing that no order under Section 127 transferring the case was issued. The Tribunal noted that the Additional Commissioner was claimed to have concurrent jurisdiction, but no such order was presented on record. In the absence of an order conferring concurrent jurisdiction, the Tribunal found the assessment order void ab initio, thus allowing this ground in favor of the assessee.

Issue 4: Disallowance of Business Loss and Deduction of Property Tax
The assessee did not press these grounds, and hence, they were dismissed as not pressed.

Conclusion:
The appeal was partly allowed. The Tribunal upheld the validity of the notice under Section 143(2) and the jurisdiction of the ITO but declared the assessment order by the Additional Commissioner void due to lack of jurisdiction. The disallowance of business loss and property tax deduction issues were dismissed as not pressed.

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