2017 (6) TMI 1150 - AT - Income Tax

Non-service of notice u/s. 143(2) - Held that - It is not clear from record in the instant case whether there was proper service of notice supported by proof of service or there was deemed service of notice as observed in the above decision or there was no service at all. The ld. DR has only reiterated the contents of impugned order. In presence of all these facts, in our opinion, it will be appropriate in the interest of justice to restore the issue to the file of AO to decide the same afresh as per law after confronting the proof of service of notice to the assessee, which is stated to be available on assessment record as per remand report. In case, the statutory notice is found properly served on the assessee as per law, the assessee would not be entitled to any relief, but if it is found otherwise, the assessment order so passed, would be rendered null and void, as held in various judicial pronouncements. Needless to say, the assessee shall be given reasonable opportunity of being heard. Accordingly, the appeal of the assessee deserves to be allowed for statistical purposes.

Summary

Issues Involved:
1. Proper service of notice u/s. 143(2) of the IT Act.
2. Validity of assessment due to lack of proper notice.

Analysis:

Issue 1: Proper service of notice u/s. 143(2) of the IT Act
The case involved an appeal by the assessee against the order of the ld. CIT(A) for the assessment year 2006-07. The main contention was whether the notice u/s. 143(2) was served on the assessee within the stipulated time. The notice was deemed to have been issued on 28.06.2007 and was stated to have been served on the assessee through speed post on 29.06.2007. The assessee denied receiving the notice and raised concerns about the proof of service provided by the revenue department. The tribunal found merit in the assessee's contentions, noting discrepancies in the record regarding the service of the notice. The tribunal observed that the proof of service of the notice was not produced for examination despite multiple adjournments. Due to doubts about the proper service of the notice within the statutory period, the tribunal decided to restore the issue to the file of the Assessing Officer for a fresh decision after verifying the proof of service to ensure justice and adherence to legal requirements.

Issue 2: Validity of assessment due to lack of proper notice
The validity of the assessment was called into question due to the uncertainty surrounding the service of the notice u/s. 143(2). The tribunal emphasized the importance of proper service of notice within the specified timeline for a valid assessment. It was highlighted that if the statutory notice was found to be properly served, the assessee would not be entitled to any relief. However, if the service of notice was found to be lacking, the assessment order would be deemed null and void, as per established legal principles. The tribunal stressed the significance of providing the assessee with a fair opportunity to be heard in such matters. Consequently, the appeal of the assessee was allowed for statistical purposes, indicating that the decision was made based on procedural grounds rather than the merits of the case.

In conclusion, the judgment focused on the critical issue of proper service of notice u/s. 143(2) and its implications on the validity of the assessment. The tribunal's decision to remand the issue to the Assessing Officer underscored the importance of procedural compliance and ensuring that the assessee's rights are safeguarded during the assessment process.