2019 (5) TMI 335 - AT - Income Tax

Assessment u/s 144 - AO does not have any proof of service u/s 143(2) - AO justification in issuing the notices on the addresses available on record - new address gathered from the ROC s website - HELD THAT - Shape of the entry of dispatch of notice u/s 143(2) recorded in the Dispatch Register was not traceable in the office of the ITO Ward-1(1) Indore and which has now been traced out and available with the AO. Refereeing of CIT/DR argument that it was the duty of the assessee to intimate the AO about the change of address and therefore the Assessing Officer was justified in issuing the notices on the addresses available on record and the Assessing Officer tried his best to serve the notice upon the assessee at the available addresses as mentioned in the order u/s 144 dated 29.12.2011 and subsequently on the new address gathered from the ROC s website thus the Assessing Officer was not on default but the assessee was in default by not intimating the changed address to the Revenue Authorities and ld. CIT(A) failed to appreciate this aspect. Considering in the interest of justice and fair play the Revenue deserves one more opportunity. Therefore we deem it appropriate to set aside the order of the CIT(A) on this issue. The appeal is remanded back to the file of the CIT(A) with direction to consider the submissions of the Revenue afresh. CIT(A) would decide the appeal in terms as indicated hereinabove after affording due opportunity of being heard to both the parties as per law. Accordingly the appeal filed by the Revenue is allowed for statistical purposes only.

Summary

Issues:
1. Validity of assessment order under section 144 read with section 143(3) for the assessment year 2009-10 due to lack of proof of service of notice under section 143(2).

Analysis:

Issue 1: Validity of assessment order under section 144 read with section 143(3) for the assessment year 2009-10 due to lack of proof of service of notice under section 143(2):
The Revenue raised grounds of appeal challenging the assessment order's validity, arguing that the Assessing Officer had issued and served the notice under section 143(2) through postal authorities at the address provided by the assessee. However, the ld. CIT(A) found that the Assessing Officer lacked proof of service of notice under section 143(2) based on the remand report. The Revenue contended that corroborative evidence existed in the form of dispatch register entries, which were initially untraceable but later found. They argued that it was the assessee's duty to update the address, justifying the notices sent to the available addresses. The Revenue sought another chance before the ld. CIT(A). The assessee, on the other hand, supported the ld. CIT(A)'s decision, emphasizing the lack of proof of service. The ITAT observed the conflicting arguments and evidence. Considering the interests of justice, the ITAT remanded the appeal back to the ld. CIT(A) for fresh consideration, allowing the Revenue another opportunity to present its case. The CO filed by the assessee was also remanded for further review by the ld. CIT(A) after addressing the service of notice issue.

In conclusion, the departmental appeal and cross-objection were allowed for statistical purposes only, with the order pronounced on 25.3.2019.