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2019 (7) TMI 864 - AT - Income TaxAppellate order is antedated - allegation to not follow CBDT Instructions that CIT(As) have been advised to pass and issue orders within 15 days from the date of last hearing - alleged that order passed in July,2013 - ld. CIT(A)-II, Pune actually concluded the hearing on 20-03-2013 and passed the order on 25-03-2013, but the same was dispatched late, along with several other orders passed by him in the month of March, 2013 - HELD THAT - If, for a moment we accept the contention of the assessee for quashing the impugned order, being, illegal on the raison d etre advanced, a contention with which we do not actually agree, a fortiori which would follow is that the assessment order would revive in the absence of there being any valid first appellate order. It would again require direction from our end to the CIT(A) to pass an order as the appellant urging the quashing of the impugned order in this case is the assessee and the impugned order has been passed against him. On a specific query as to how the assessee was prejudiced by the supposed antedating of the impugned order in terms of either some limitation setting in or the right to file appeal against it being jeopardized, the AR candidly admitted that no such legal right of the assessee was impaired. In view of the foregoing discussion, we hold that the allegation levelled by the assessee that the impugned order was antedated by the ld. CIT(A), is not correct and is hereby rejected. The first additional ground is, ergo, dismissed. Non-service of notice u/s.143(2) - validity of reopening of assessment - HELD THAT - The assessee has placed on record a copy of his letter dated 28-11-2011 addressed to the DCIT objecting to the service of notice dated 08-09- 2010 purportedly issued u/s. 143(2) and served upon him and stated that I would like to state that the said notice 08-09-2010 has not been received by me . The assessment order in this case was passed on 30-12-2011. Thus, it is proved that the assessee did raise objection of the non-service of notice before the AO before the completion of assessment and such an objection has not been disposed of by the AO either in the assessment order or otherwise. It is evident from the assessment folder that notice u/s.143(2) dated 08-09- 2010 was issued but never served upon the assessee and, in fact, returned by the postal authorities. It is further clear that no other notice u/s. 143(2) was issued by the AO before the cut-off date of 30-09-2010. Accordingly, proviso to section 292BB gets magnetized and the deemed service of notice u/s.143(2), by virtue of the main part of the section 292BB, is erased. Since the requirement of service of notice u/s. 143(2) and not its issue , is a jurisdictional condition, which is unfortunately lacking in the instant case, the sequitur is that the AO lacked jurisdiction to make the assessment. Ex consequenti , the assessment order passed in absence of a valid jurisdiction has to be and is hereby quashed. - Decided in favour of assessee.
Issues Involved:
1. Whether the appellate order passed by the CIT(A) is antedated and hence null and void. 2. Whether the assessment order is null and void due to non-service of notice under Section 143(2) of the Income-tax Act, 1961 within the prescribed time limit. Detailed Analysis: Issue 1: Antedated Appellate Order The assessee contended that the appellate order dated 25-03-2013 by the CIT(A) was actually passed in July 2013, making it antedated and therefore null and void. The assessee supported this claim with an affidavit stating he appeared before the CIT(A) in June and July 2013 and filed applications during that period. The Tribunal directed the Departmental Representative (DR) to obtain comments from the CIT(A), who confirmed that the order was passed on 25-03-2013 and reported as such in the monthly D.O. letter to the Chief Commissioner of Income Tax (CCIT) in April 2013. The Tribunal examined the dispatch register and found that several orders passed in March 2013, including the impugned order, were dispatched in July 2013 due to the CIT(A)'s training commitments. The Tribunal also verified that the assessee's claim of meeting the CIT(A) in July 2013 was incorrect, as the CIT(A) was not present in the office during that period. The Tribunal concluded that the appellate order was indeed passed on 25-03-2013 but dispatched late, which does not affect its validity. The Tribunal held that the allegation of antedating was unfounded and dismissed the first additional ground. Issue 2: Non-Service of Notice under Section 143(2) The assessee argued that the assessment order was invalid due to non-service of notice under Section 143(2) within the prescribed time limit. The Department contended that the notice was issued on 08-09-2010 but returned by postal authorities as the assessee was not residing at the address mentioned in the PAN database. The Department argued that the issuance of notice should be considered as compliance with the requirement of service. The Tribunal noted that the assessee filed the return with a Pune address, whereas the notice was sent to a Solapur address. The Tribunal emphasized that the proviso to Section 143(2) requires the notice to be served within six months from the end of the relevant assessment year, i.e., by 30-09-2010. The Tribunal found that the notice issued on 08-09-2010 was returned, and no further notice was issued within the stipulated period. The Tribunal held that 'issue' of notice is not equivalent to 'service' of notice, citing various judicial precedents, including the Hon'ble Supreme Court's decision in R.K. Upadhyaya vs. Shanabhai P. Patel, which distinguished between the two terms. The Tribunal also referred to Section 27 of the General Clauses Act, which allows for rebutting the presumption of valid service if the contrary is proved, as in this case. The Tribunal rejected the Department's reliance on Rule 127 of the Income-tax Rules, which allows for service at the address given in the PAN database, as the notice was not actually delivered or served. The Tribunal further noted that the assessee had raised an objection to the non-service of notice before the completion of the assessment, invoking the proviso to Section 292BB, which negates the deemed service of notice. The Tribunal concluded that the non-service of notice under Section 143(2) was a jurisdictional defect, rendering the assessment order null and void. Consequently, the Tribunal quashed the assessment order and did not delve into the merits of the case. Conclusion The appeal was partly allowed, with the Tribunal quashing the assessment order due to non-service of notice under Section 143(2) and dismissing the ground related to the antedated appellate order.
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