9911796707
TMI Blog2010 (3) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... erits, against which the Revenue has come up in appeal before us. 3. The assessee, inter alia, raised objection before the learned CIT(A) that the first notice under section143(2) was received by it on 24-12-2001. Relying on the proviso to section 143(2) it was urged that since the notice under section 143(2) was issued after expiry of one year from the end of the month in which the return was filed, the whole assessment be held as null and void . The learned CIT(A) wrote one letter dated 10-2-2003 to the Assessing Officer seeking clarification in the matter. The Assessing Officer attended the office of the learned CIT(A) along with case record and stated that the contention raised by the assessee that no notice was issued under section 143(2) till 24-12-2001, was incorrect. It was put forth that a notice dated 16-5-2000 was issued by RPAD to the assessee which was duly served. When this position was confronted to the assessee, it was claimed that no notice dated 16-5-2000 was served on it inasmuch as it was highly improbable that a notice could be issued by the Assessing Officer on the very next day of its filing the return. The assessee sought strict proof of the servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43, section 144 and section 145 shall, so far as may be, apply. One of the important questions raised in this appeal is whether the proviso to section 143(2) applies to the block assessment also. In other words is it incumbent upon the Assessing Officer to issue notice under section 143(2) within the prescribed period of twelve months from the end of the month in which the block return is filed? 6. At this juncture it will be useful to refer to the proviso to section 143(2) which at the material time provided that no notice under clause ( ii ) shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished. The effect of this proviso is that for the purposes of making assessment, notice under section 143(2) can be served on the assessee only within a period of twelve months from the end of the month in which the return is furnished. Where no notice is issued within the stipulated time, then no assessment is possible and resultantly the declared income automatically becomes the assessed income. If the Assessing Officer intends to make assessment, it is incumbent upon him to issue notice under section 143(2) within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed by the assessee, the procedure prescribed under section 143(2) was to be necessarily followed. The assessment completed without issuing notice under section 143(2), was held to be invalid and not a mere irregularity. 8. As against the above view in favour of the assessee that the issuance of notice within the time prescribed under proviso to section 143(2) is a mandatory requirement for framing of block assessment, a contrary view also came to be expressed by some judicial forums. The stand of the Revenue remained that the proviso to section 143(2) did not apply to the block assessment proceedings inasmuch as clause ( b ) of section 158BC included the words "so far as may be" in the context of applicability of section 143(2) and hence even if no notice was issued within twelve months from the end of the month in which the return was furnished, the assessment proceedings could validly go on. Eventually this issue has been recently set to rest by the Hon ble Apex Court in the case of Asstt. CIT v. Hotel Bluemoon [2010] 188 Taxman 113. The facts of the case are that search action was taken against that assessee under section 132 of the Act. Whereas the assessee argued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention is accepted that notice under section 143(2) issued on 16-5-2000 was served upon the assessee through registered post, then of course such notice will be in time and no infirmity can be found in the block assessment order on this count. If however the view point of the assessee is accepted that the notice under section 143(2) was issued for the first time on 24-12-2001, then such a notice would be time barred. Now we need to examine if any notice under section 143(2) dated 16-5-2000 was issued and served on the assessee. The revenue s view point is that notice under section 143(2) dated 16-5-2000 was issued and served on the assessee by registered post acknowledgement due. In support of this claim the revenue has placed on record a copy of Postal Department acknowledgement at pages 6 and 7 of the paper book. On the perusal of these two pages it is found that the name of the assessee is mentioned against Sl. No. A-715. On the right side of this page there is stamp impression of the Department of Posts which bears the date of 22-5-2000. The learned Departmental Representative canvassed the view that since the notice under section 143(2) dated 16-5-2000 was sent through regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent intention appears, the service shall be deemed to be effected by properly addressing prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved , to have been effected at the time at which the letter would be delivered in the ordinary course of post." [Emphasis supplied by us] 12. When section 27 of the General Clauses Act is read in juxtaposition to section 282 of the Income-tax Act, it follows that a notice can be validly served by post. When a letter is properly addressed, prepaid and posted by a registered post, such letter containing document is presumed to have been delivered in the ordinary course of post unless the contrary is proved. It, therefore, follows that there is a presumption of delivery of the document contained in the letter when the letter is sent through registered post properly addressed and prepaid. The presumption is for the delivery of document which is contained in the letter sent through registered post. When it is claimed that a particular notice or order or other document was not contained in the letter, claimed to have been sent through registered post, it is for the sender to lead evidence t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch as "in the absence of any rebuttal from the side of the assessee". It, therefore, transpires that if the assessee succeeds in proving that the letter containing the notice was not served on it or the letter did not contain the notice at all, the presumption contained in section 27 of the General Clauses Act shall not apply. 14. Certain salient features of this case need to be taken note of- ( i )Block return was filed on 15-5-2000. According to section 143(2) at the relevant time : Where a return has been made under section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer shall, if he considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under-paid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced there, any evidence on which the assessee may rely in support of the return . Ordinarily it is only on the perusal of the return of income filed by the assessee that the Assessing Officer requires the attendance or production of som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have contained some requirements of the Assessing Officer supposed to be furnished in support of certain claims made by the assessee. Along with the said notice under section 143(2) dated 16-5-2000, copy of which is available in the Departmental Paper Book, there is no reference for the production of any accounts/document or any particular information. Except for mentioning the date on which the attendance is required on 6-6-2000, it is silent on the documents or evidence required from the assessee in support of the claims made in the block return. On the contrary we find that the notices dated 20-12-2001 issued on 24-12-2001, copy placed at pages 1 to 3 of the paper book, has a questionnaire requiring the assessee to tender explanation on various documents found at the time of search. This questionnaire is running into two pages. ( iv )According to the department it issued second notice under section 143(2) on 24-12-2001 whereas according to the assessee that was only the first and the only notice. It is not understandable as to how the swiftness shown by the Assessing Officer in issuing notice under section 143(2) on the very next day from the filing of the return on 16-5-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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