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TMI Blog2012 (12) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... e restored. 5. That the appellant craves to add or alter any or more ground or grounds of appeal as may be deemed fit at the time of hearing of appeal." 2. The brief facts of the case are that the assessee is an educational society and having different branches/colleges at Haryana, Agra & New Delhi. The assessee society is registered under section 12A of the Income Tax Act, 1961 ('the Act' hereinafter) vide registration certificate dated 19th May, 1994.). The case of the assessee society was selected for scrutiny under CASS as per Sl. No.903 of the list dated 15.06.2007. Notice under section 143(2) of the Act was issued on 22.06.2007 on the assessee's address G-395, Kamla Nagar, Agra. A notice under section 142(1) was also issued on 21.07.2008. In response to the said notice, Dr. B.K. Gupta, Member of the assessee society attended and requested for adjournment. The case was adjourned to 22.08.2008. On 22.08.208 Shri K.K. Jain, Advocate attended and filed adjournment application. The case was adjourned to 26.08.2008. On the same date, notice under section 142(1) of the Act alongwith questionnaire was issued. On 26.08.2008 Shri K.K. Jain, Advocate attended and filed objection and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... papers filed only in a situation where the notice sent on the address provided in the appropriate column in the return comes back un-served. It is not the situation in the present mater. The address G- 395, Kamla Nagar, Agra do not pertain to the appellant and this was very well within the knowledge of the Assessing Officer as pointed out as the notice sent for assessment year 2005-06 was returned unserved. Even the notice u/s.142(1) was sent at this address which was returned un-served by the notice server giving his report that G-395 Kamla Nagar, Agra does not belong to the appellant. The notice u/s 143(2) was sent through post after the date fixed for compliance. There is no entry in the order sheet in respect of filing return, date of issuance of notice u/s 143(2) and date fixed for compliance. The order sheet starts from 1.7.2008 which suggests that no notice u/s 143(2) was issued to the appellant and tendered. The postal receipt reveals that the impugned notice was sent to Dr. R.N. Gupta G-395 Kamla Nagar, Agra. The information on whom the notice was served has not been provided by the Assessing Officer on specific demand. In view of the peculiar facts and circumstances or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 143(2) was 31st October, 2007. A notice under section 143(2) was issued on 22.06.2007 which was sent by the Speed Post and served on the assessee on 27.08.2007. Ld. Departmental Representative drew our attention to page no.5 of Revenue's Paper Book where a copy of order sheet has been placed. On the said page, it was clearly stated in the Order Sheet that the case is selected under CASS and to issue notice under section 143(2) of the Act. Ld. Authorised Representative submitted that the assessee appeared before the Assessing Officer in the proceedings. As regards the address where notice under section 143(2) of the Act has been sent i.e. Dr. R.N. Gupta Technical & Educational Society, G-395, Kamla Nagar, Agra. The ld. Departmental Representative submitted that the same address has been noted by the Assessing Officer from the TDS certificate and in the PAN of the assessee. Ld. Departmental Representative submitted that the CIT(A) has wrongly held that no notice under section 143(2) of the Act has been issued and served on the assessee wherein in fact notice was issued and served on the assessee by Speed Post. The said notice sent by Sped Post was not returned by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n file. Ld. Authorised Representative has also pointed out that the return of income was filed by the assessee on 30th October, 2006 in the name of Dr. R.N. Gupta Technical Educational Society mentioning therein the address at Etmadpur, District Agra. Ld. Authorised Representative submitted that it is not explained that as to how and why the alleged notice under section 143(2) of the Act was issued in the name and address other than the name and address given in the appropriate column in the return. Ld. Authorised Representative further submitted that postal receipt issued by the postal authority was also in the name of Dr R N Gupta. The said notice was not addressed at proper name and address of the assessee society and as such was never served on the assessee. Ld. Authorised Representative submitted that in the notice under section 143(2) of the Act it was wrongly mentioned date of filing of return as 01.07.2006 instead of 30.10.2006. Ld. Authorised Representative has also submitted that in the report of notice server it was mentioned that Mr. Gupta has left the said place G-395, Kamla Nagar, Agra long back and presently Mohan Singh is residing. Ld. Authorised Representative in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment is null and void." 8. We have heard the ld. Representatives of the parties and records perused and gone through the decisions cited. The crux of the matter to be examined in the case under consideration whether under the facts and circumstances the notice under section 143(2) of the Act has been served to the assessee or not ? The provisions for service of notice have been provided in section 282 of the Act. In the relevant section applicable to the facts of the case under consideration for Assessment Year 2006-07, the provisions before 1st October, 2009 reads as under :- "282. (1) A notice or requisition under this Act may be served on the person therein named either by post or as if it were a summons issued by a court under the Code of Civil Procedure, 1908 (5 of 1908). (2) Any such notice or requisition may be addressed- (a) in the case of a firm or a Hindu undivided family, to any member of the firm or to the manager or any adult member of the family ; (b) in the case of a local authority or company, to the principal officer thereof ; (c) in the case of any other association or body of individuals, to the principal officer or any member thereof ; (d) in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 18 ITR 928 (All); v) Bharat Glass Factory v. STO, (1968) 21 STC 445 (All); vi) Giri Lal Mam Chand & Co. v. ITO, (1978) CTR (All) 446, 449. 8.3 The Delhi High Court in the case of CIT vs. Yamu Industries limited, 306 ITR 309 (Delhi) held as under :- (head note page nos.309 & 310) "Held, that the requirement of section 282 of the Act is that notice may be served upon the person named therein, either by post or as if it were a summons issued by a court under the Code of Civil Procedure, 1908. The record showed that notice under section 143(2) of the Act dated October 7, 1997, had been sent by registered post and according to the provisions of the Act it was to be served upon the assessee on or before November 30, 1977. The notice had been sent by registered post to the correct address of the assessee on October 9, 1997. So, the provisions of section 282 of the Act with regard to service of notice had been duly complied with by the Department. Since the notice under section 143(2) of the Act sent by registered post had not been received back "unserved" within thirty days of is issuance, there would be a presumption under the law that notice had been duly served upon the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made a consolidated order of assessment on the assessee for the assessment years 1960-61 and 1964-65 to 1967-68. Subsequently, recovery proceedings were commenced in 1970. The assessee then filed a writ petition on the ground that the recovery proceedings were not valid as the assessment order and demand notice had not been served on the assessee. A counter affidavit was filed by the Income-tax Officer wherein he asserted that the assessment order and demand notice were served on the assessee on October 24, 1968. Thereafter, the writ petition was dismissed as not pressed. The assessee filed appeals against the assessment on August 2, 1977. The assessee stated that the assessment order and demand notice were served on July 24, 1977. The Appellate Assistant Commissioner asked the Income-tax Officer to explain the circumstances with regard to the service of the assessment order and demand notice. The Income-tax Officer submitted a reply stating that both the assessment order and the demand notice had been duly served on the assessee on October 24, 1968. This fact was corroborated by the affidavit of the then Incometax Officer, Jhansi, filed in the above noted writ petition. The Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Baijnath Hari Shanker vs. CIT, 91 ITR 208 (All) wherein it has been held that service in such case is not infirm or invalid for the reason that notice was not served on the principal officer of the association of persons. A presumption of service as noted in the case of registered post has also been applicable in case of a notice served by Speed Post. In this regard, the Delhi High Court in the case of CIT vs. Madhsy Films P. Ltd, 301 ITR 69 (Delhi) held as under ;- (head note page 70) "Held, allowing the appeal, that there was nothing on record to show that the notice dated October 23, 2002 dispatched on October 25, 2002, by sped post was undelivered or received back. Under the normal circumstances, a presumption would lie that the notice had reached the assessee within 2 or 3 days. Though the presumption under the section is rebuttable, in the absence of proof to the contrary, the presumption of proper service or effective service of notice would arise. Since the envelope containing the notice had not been received back by the Department, there was a presumption that it had reached the assessee which was not rebutted by the assessee by filing an affidavit. Therefore, noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was served on 1st September, 1998 i.e. the day immediately after the expiry of the period envisaged by sub-section. The Assessing Officer asked the assessee to produce documentary evidence that the notice under question was delivered on 1st September, 1998 but the assessee failed to furnish any such evidence. The court observed that it will be fair to presume that letter despatched on 25.08.1998 would have reached the hands of the assessee at least by 28th August, 1998, the intervening dates 29.08.1998 and 31.08.1998 need to be satisfactorily explained away by the assessee and not the Department as envisaged by section 114 of the Indian Evidence Act, if not section 27 of the General Clauses Act. The court has also considered the affidavit filed by the assessee wherein it was stated that notice issued under section 143(2) of the Act on 25.08.1998 fixing the hearing on 31st August, 1998 was served upon the assessee on 1st September, 1998. Thus, the case of the assessee is that the notice was received by him on 1st September, 1998. The court observed that the assessee conveniently stated that the envelope, which was the best and complete evidence on the conundrum, has been destroy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of escaped assessment under section 147 of the Act. In the case of Harsingar Guthka P. Ltd. vs. CIT, 336 ITR 90 (All) wherein the issue is related to service of notice under section 143(2) on C.A. in business premises of the assessee. However, in that case the court remanded the matter back to the file of the Tribunal. 8.10 In respect of order of I.T.A.T. in ITA No.428/Agr/2007 in case of Dr. Ajay Prakash, order dated 23.04.2009 wherein the issue to be examined by the Tribunal was in respect of issue of notice under section 148 of the Act. In that case, notice was not issued on the last known address of the assessee and there was no valid evidence of proper service of notice. The Assessing Officer did not submit the remand report which was called by the CIT(A). Thus the facts of that case are distinguishable with the facts of the case under consideration. 8.11 In the light of above background and discussions, we consider the facts of the case under consideration. The admitted facts of the case are that the Assessing Officer issued notice under section 143(2) of the Act on 22.06.2007 on address G- 395, Kamla Nagar, Agra. The said address G-395, Kamla Nagar, Agra is mentioned in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act was issued at the address G-395, Kamla Nagar, Agra which is the address where the assessee operating bank account regarding fixed deposit and as evident from TDS certificate. As stated above, this address was of the President and one of the members of the association. The assessee did not produce the copy of PAN inspite of specific question asked at the time of hearing before us. The Assessing Officer while replying to the R.T.I. application of the assessee vide letter dated 29.04.2009, of which copy is placed at page no.33 of the assessee's Paper Book, has written as under :- "(e) Reply on this point has been given in point No.(d) of this office letter dated 16.04.2009. This notice was sent through Post, not sent through Notice Server and this notice was not return as un-served to this office. You may please be obtained this information from Post Office that on whom this notice was served." 8.15 It is relevant to mention that the assessee did not obtain information from the Post Office regarding the service of the said notice. If we apply the guidelines laid down by the Delhi High Court in the case of CIT vs. Shanker Lal Ved Prakash, 300 ITR 243 (Delhi) at page no.248, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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