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TMI Blog2012 (10) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... nd posted by registered post, and unless the contrary is proved, the service is deemed to have been effected at the time at which the document would be delivered in the ordinary course of post. In view of this provision, a presumption arises that the notice has been served on the assessee within 2-3 days of posting. In present case, it is not the case that there is no office copy of this notice or that the notice was not addressed properly, or notice has been received back. Furthermore, the corresponding address on the said notice was same as on which subsequent notice u/s. 142(1) was complied with and it is held that the notice has been duly served on the assessee. Since, CIT(A) has not decided the merits of this case, we remit the is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the end of the month in which the return of income was filed. Assessing Officer found that the first notice was issued on 10.10.2007 by speed post. Assessing Officer hence concluded that provision of the Act in this regard has been duly complied with as the first notice was issued on 10.10.2007 well within the prescribed limitation. 4. Before the Ld. Commissioner of Income Tax (A) assessee submitted that it is a settled law that notice u/s. 143(2) is the jurisdictional notice which is required to be served on or before the expiry of 12 months from the end of the month in which the return of income was filed. Assessee contended that as the notice u/s. 143(2) was not served jurisdiction assumed to pass impugned order was void ab initio. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stt. record. 4.1 From the above Ld. Commissioner of Income Tax (A) noted that Assessing Officer has categorically stated in his submission that notice has not returned unserved but he does not have any evidence of the service of the notice. Ld. Commissioner of Income Tax (A) further noted that there is not doubt that as per Statute, apart from the issuance of notice, the service of notice as provided for in law is an essential legal requirement. In other words, the Assessing Officer was to issue and serve the notice on or before 30.11.2007. In this regard, Ld. Commissioner of Income Tax (A) referred to the decision of Raj Kumar Chawla vs. ITO [2005] 277 ITR AT 225 (Del.) (SB); C.I.T. vs. Pawan Gupta and Others [2009] 223 CTR (Del.) 487 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income Tax (A) and placed reliance on a catena of case laws for his submission that apart from issuance the order has to served also within the prescribed time. 7. We have carefully considered the contentions and perused the records. In our considered opinion, it is undisputed that service of notice within time is mandatory. But the case laws referred by the Ld. Commissioner of Income Tax (A) and by ld. Counsel of the assessee are not applicable on the facts of the case. The case law referred by the Ld. Departmental Representative is squarely applicable in this case. In this case the tribunal in para 4 to 4.1 of the order held as under:- 4. We have considered the facts of the case and the submissions made before us. The facts are th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on a number of cases to the effect that service of the notice within time is mandatory. There is no quarrel about this proposition. The question in this case is whether, notice dated 28.9.2007 has been served on the assessee? The Ld. Commissioner of Income Tax (A) has relied on the decision of the Hon ble Delhi High Court in the case of Mayawati vs. C.I.T. and others (2010) 321 ITR 349. The facts of the case are quite different and, therefore, the ratio of that case is not relevant for our purpose. Nonetheless, the facts stays that the notice dated 289.2007 has been validly posted and the presumption of its service has not been rebutted by any cogent evidence. Therefore, it is held that the notice has been duly served on the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on various case laws that apart from issuance of notice, the same has to be served also within prescribed time. We again reiterate that there is no dispute as to exposition in the case laws. But the facts stays that the notice dated 12.10.2007 has been validly posted and the presumption of its service has not been rebutted by any cogent evidence. Therefore, respectfully following the precedent from the Co-ordinate Bench, we hold that the notice has been duly served on the assessee. As the Ld. Commissioner of Income Tax (A) has not decided the merits of this case, we deem it appropriate to remit the issues on merits of the case of the files of the Ld. Commissioner of Income Tax (A). 8. In the result, the appeal filed by the Revenue stands ..... X X X X Extracts X X X X X X X X Extracts X X X X
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