9911796707
TMI Blog2012 (6) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1961 for the A.Y. 2006-07. 2. The grounds of appeal raised by the revenue are as under: - 1. The order of the ld. CIT (Appeals) is erroneous contrary to facts and law. 2. On the facts and in the circumstances of the case and in law, the ld. CIT (Appeals) has erred in treating the notices issued u/s 143(2) and 115WE(2) of the I.T. Act, 1961 as invalid. 2.1 The ld. CIT (A) ignored the fact that the notices u/s 143(2) and 115WE(2) of the I.T. Act, 1961 were validly served at the last known address of the assessee. 3. The appellant craves leave to add, to alter, or amend any grounds of the appeal raised above at the time of the hearing. 3. In the grounds of appeal, the department has taken a stand that the notice issued u/s 143(2) and 115WE(2) of the Act were validly served. The AO completed the assessment u/s 144 of the Act. The AO also passed an order u/s 115WF of the Act. These are two separate orders passed by the Assessing Officer. The ld. CIT (A) passed two separate appellate orders in two separate appeals arising from assessment order passed u/s 144 of the Act and order passed u/s 115WF of the Act respectively. The department should have filed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the assessee had received notice dated 1.10.2007 from DCIT, Circle-6(1), New Delhi regarding some TDS/TCS query in the course of processing the return of income for A.Y. 2006-07 which was compiled by the assessee on 28.11.2007. At that time, the assessee was operating from address given in the notice of AO, i.e., at 1-GF, AGCR Enclave, Karkarduma, Delhi. It was further pointed out that in the return of income filed by the assessee for the year under consideration, the address was mentioned at 1-GF, AGCR Enclave, Karkarduma, Delhi. The assessee then pointed out that assessee had already shifted its registered office from 44, Rajendra Bhawan, Rajendra Place, New Delhi long way back in 2001. It was thus, contended that statutory notice u/s 143(2) dated 11.10.2007 issued at 44, Rajendra Bhawan, Rajendra Place, New Delhi was not correct, and service of notice by affixture at that address was not in accordance with the facts of the case and the provisions of law contained in that behalf. 8. Apart from affidavit given by the assessee, the following documents were furnished to support the assessee s contention before the ld. CIT(A): - (i) Copy of intimation in Form No. 18 to RO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnect in dealing with an urgent situation. 4.2 The ld. Counsel has brought the following cases of the Hon ble Delhi High Court to my notice in support of his contention: - CIT Vs. Dewan Kraft System (P) Ltd. 165 Taxman 139 (Delhi) CIT Vs. Rajesh Kumar Sharma 165 Taxman 488 (Delhi) CIT Vs. Lunar Diamonds Ltd. 146 Taxman 691 (Delhi) 4.3 In the case of CIT Vs. Dewan Kraft System (P) Ltd., the facts are almost similar to the present case. The relevant para is reproduced as under: - We have examined the copies of the notices issued by the AO and find that the notice issued at the very last minute. Since the office of the assessee was closed, no efforts were made by the AO to find out the whereabouts of the assessee to serve it but a short cut was taken by the Inspector who resorted to affixation, which was carried out in the absence of any independent witness. It appears to us that the entire exercise of sending the Inspector and resorting to affixation was carried out only to ensure that the case does not become time-barred, knowing fully well that the notices have been issued at the very last minute and could not have been served on the assessee without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 1-GF, AGCR Elcave, Karkarduma, Delhi 110092. Prior to this physical return, the assessee filed e-return for the assessment under consideration on 25.11.2006 vides e-acknowledgment no. 90149209. In order to make assessment u/s 143(3) of the Act by the AO, the AO should have issued notice u/s 143(2) before the expiry of 12 months from the end of the month in which the return was furnished. In the present case, the AO should have therefore, served on the assessee the notice u/s 143(2) on or before 3 1st day of November, 2007, being expiry of 12 months from the end of the month of November, 2006 in which the e-return was filed by the assessee on 25.11.2006. In the present case, AO selected the return for scrutiny to complete the assessment u/s 143(3) of the Act. The AO, therefore, issued a notice u/s 143(2) on 11.10.2007 at 44, Rajendra Bhawan, Rajendra Place, New Delhi. This notice issued u/s 143(2) was not served upon the assessee but returned back undelivered with the postal remark that no such office in 44, Rajendra Bhawan, Rajendra Place, New Delhi . The AO therefore, deputed the Inspector and process server to serve the notice by affixture. Affixture of this notice was don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11.10.2007. We further, find that the assessment for A.Y. 2005-06 was completed u/s 143(3) vide order dated 30.2.2007. In the body of assessment, the address of assessee is mentioned as 1-GF, AGCR Enclave, Karkarduma, Delhi. The AO also issued notice of demand u/s 156 of the Act for the A.Y. 2005-06 at the same address i.e. 1-GF, AGCR Enclave, Karkarduma, Delhi. We further find that return of income for the A.Y. 2004-05 was also filed showing the address at 1-GF, AGCR Enclave, Karkarduma, Delhi on 1.11.2004. It is further found that assessment for the A.Y. 2003-04 was also completed u/s 143(3) of the Act vide order dated 30.3.2006, where the address of the assessee is mentioned at 1-GF, AGCR Enclave, Karkarduma, New Delhi -110092. These facts of the case discussed above would clearly show that the correct address of the assessee lastly known to the department on 11.10.2007 when notice u/s 143(2) was issued was 1-GF, AGCR Enclave, Karkarduma, Delhi. We, therefore, hold that issue of notice u/s 143(2) at 44, Rajendra Bhawan, Rajendra Place, New Delhi was not valid. This notice u/s 143(2) has not been issued at the correct last known address of the assessee. Therefore, issuing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor is dated 26.11.2008. The notice issued on 15.09.2008 at 1-GF, AGCR Enclave, Karkarduma, Delhi is beyond the period of 12 months from the end of the month in which the return was filed. Therefore, issue of this notice dated 15.09.2008 is beyond the stipulated time provided u/s 143(2) of the Act. Therefore, this notice does not help the department to uphold the validity of the assessment made by the AO u/s 144 of the Act. 15. Even otherwise, the service of notice by affixture at 44, Rajendra Bhawan, Rajendra Place, Delhi is also not in accordance with the provisions of Order V, Rule 17 of the Code of Civil Procedure, 1908 in as much as the place was not properly identified and the report of service was not authenticative, by any independent person. We have gone through the affixture report submitted by process server stating that he affixed the notice at 44, Rajendra Bhawan, Rajendra Place, Delhi in the presence of Inspector of Income Tax, Shri Amal Pal Singh. On the basis of this report, DCIT declared the service to be valid vide his note dated 31.10.2007. In the service report it has been mentioned that notice has been served by the affixture on 11.10.2007. Since the affixt ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
