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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 ..... CIT(A) in respect of non-issuance of notice under section 143(2) and quashed the assessment, therefore, the CIT(A) is required to give finding after recording complete facts on merit of the case - appeal of the Revenue is allowed and allowed for Statistical purposes. - ITA No.346/Agr/2009 - - - Dated:- 25-5-2012 - SHRI BHAVNESH SAINI, SHRI A.L. GEHLOT, JJ. Appellant by : Shri Waseem Arshad, Sr. D.R. Respondent by : Shri K.K. Jain, Advocate ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: This is an appeal filed by the Revenue against the order dated 10.06.2009 passed by the Ld. CIT(A)-II, Agra for Assessment Year 2006-07 on the following grounds :- 1. That the learned CIT(A)-II, Agra has not properly appreciated the facts of the case as mentioned in the body of the assessment order. 2. That the learned CIT(A) has erred in law and on facts in quashing the assessment order framed by the A.O. ignoring the facts which were relevant for framing the assessment order under reference. 3. That the learned CIT(A) had erred in law and on facts in deleting the addition of Rs. 2,56,03,033/- made by the A.O. on account of non-production of books of account. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs.4,36,84,561/-. Since the assessee society did not fulfill the conditions of section 12A of the Act, the Assessing Officer after allowing expenditure on account of electricity, administration and other office expenses at Rs.1,80,81,528/-, treated the balance amount of Rs.2,56,03,033/- as liable to be taxed. The Assessing Officer accordingly determined the income at Rs.2,56,03,033/-. The CIT(A) quashed the assessment order on the ground that no notice under section 143(2) has been issued and served on the assessee. The relevant finding of the CIT(A) is as under :- (CIT(A) paragraph no.2.11) I have considered the rival submissions with reference to the information supplied by the Assessing Officer under RTI Act and facts on the records of the case and judicial pronouncements cited. I am in agreement with the A.R. that the notice u/s. 143(2) was not issued and tendered to the appellant. It is not clear why the notice u/s 143(2) was issued and sent in the name other than the name and address given in the appropriate column in the return filed. The statutory notice u/s 143(2) can only be issued in the name and address given in the appropriate column in the return and not on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowance was made in assessment year 2005-06, the assessment of which was completed u/s 143(3). The production of books of account and vouchers was not obligatory on the appellant for want of issue and service of notice u/s 143(2). Keeping in view of the facts and circumstances of the case and past history, the disallowance made is therefore, deleted. 5. Ld. Departmental Representative submitted that the CIT(A) did not properly appreciate the facts of the case which were brought out by the Assessing Officer and noted in the Assessment order. Ld. Departmental Representative submitted that the CIT(A) was not correct in quashing the Assessment Order ignoring some important facts noted by the Assessing Officer. 6. Ld. Departmental Representative drew our attention on page no.1 of the Paper Book filed by the Department and submitted that the case of the assessee has been selected for scrutiny vide cases list dated 15th September, 2007. Ld. Departmental Representative drew our attention to page no.2 of the Paper Book and submitted that the Income Tax Officer- 4(3), Agra intimated to the Income Tax Officer - 4(1), Agra vide letter dated 01.08.2007 about the selection of the case f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. Authorised Representative that the provisions of section 292BB of the Act also deals with service of notice deemed to be valid in certain circumstances, not the circumstances as covered by the case of the assessee. Ld. Authorised Representative submitted that the assessee raised objection before the Assessing Officer vide letter dated 26.08.2008. Ld. Authorised Representative further submitted that notice under section 143(2) of the Act for Assessment Year 2005-06 was also sent by the Assessing Officer at G-395, Kamla Nagar, Agra which was returned unserved. Ld. Authorised Representative submitted that this fact was noted at the time of inspection of the records. Ld. Authorised Representative submitted that it is well within the knowledge of the Assessing Officer that the address at which notice has been issued and sent did not pertain to the assessee. Ld. Authorised Representative submitted that the Assessing Officer simply rejected the assessee s contention that there is a typographical mistake in mentioning the date of filing the return while issuing notice under section 143(2), such mistake cannot be said to be a typographical mistake. The issuance of notice as per law is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the address is not correct. e) In the notice u/s 142(1), PAN of some other assessee was printed. f) The notice issued initially u/s 142(1) returned un-served by notice server by giving remark (supra). g) The order sheet does not bear the name of the appellant. h) The date of issue of impugned notice u/s 143(2) is not written on the order sheet which suggest that the return of income was not with the A.O. when the impugned notice was issued. i) The date, for which the notice u/s 143(2) was issued, is not mentioned on the order sheet. ) There is no entry on the order sheet about the un-served notice returned by notice server. ) Notice was addressed to Dr. R.N. Gupta G-395 Kamla Nagar, Agra and not to the present appellant. ) There was no evidence on the records about the service of the notice u/s 143(2) to the present appellant. ) Notice u/s 143(2) was never issued to the present appellant and as such the question of its service does not arise. It was submitted that the inconsistencies are of such type and repeatedly occurred which cannot be cured in view of the provisions of section 292B as stated by A.O. The A.R. drew attention to various decisions in w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice must be deemed to have been served. This view is fortified by various judgements noticed in Chaturvedi Pithisaria s Income Tax Law at page no.9240 as under :- i) Chief CIT vs. V.K. Gururaj, (1996) 7 SCC 275, 276; ii) Attabira Regulated Market Committee v. Ganesh Rice Mills, (1996) 9 SCC 471 = AIR 1997 SC 1540; iii) Union of India v. Ujagar Lal, (1996) 11 SCC 116, 117; iv) Shimla Development Authority v. Smt. Santosh Sharma, (1997) 2 SCC 637, 638 = AIR 1997 SC 1791; v) Indian Bank v. Datla Venkata Chinna Krishnam Raju, AIR 1991 SC 908; vi) G.S. Srikanth v. Sri Lakshmi Financiers, (1999) 98 Comp Cas 321, 326-27 (AP). 8.2 Where service is effected by registered post, the mere fact that the physical delivery of the notice was made to a person other than the addressee and a person who had no authority to receive the letter on the addressee s behalf, would not be sufficient to prove that there has been no proper service. This view is also supported by various judgments noticed from the said book of Chaturvedi Pithisaria s Income Tax Law at page no.9241 as under :- i) CIT v. Malchand Surana, (1955) 28 ITR 684 (Cal); ii) R.P. Saha v. CIT, (1955) 27 ITR 231 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed, prepaid and duly sent by registered post with A.D., a declaration by the postal employee that the notice was refused shall be presumed even though the acknowledgement slip has been lost or mislaid or for any other reason has not been received by the court within 30 days from the date of the issue of the notice. 8.5 No doubt the presumption of service of notice above is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumptions. The burden to rebut the presumption lies on the party, challenging the factum of service. Merely by averment by the assessee that the notice has not been received by him is not sufficient to rebut the presumption. The rebuttal of presumption too depends on the circumstances of each case. There cannot be any cut and dried formula capable of application in all cases and in all circumstances. The Allahabad High Court in the case of Jagannath Prasad Kanhaiya Lal vs. CIT, 171 ITR 596 (All.) examined the rebuttal circumstances. The question was whether the Revenue has discharged its burden of proving that the assessment order and remand notice has been served on the assessee. The relevant finding of fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g was based on the affidavit of the then Income-tax Officer. It was further asserted that the service of the notice of demand and assessment orders for all the years in question was made under a common acknowledgement slip. This acknowledgment slip was there on the record at the time of verification of the counter-affidavit filed in the High Court in the writ Petition. This slip had been pasted on the notice of demand for the assessment year 1964-65. However, subsequently, after the dismissal of the writ petition, the slip was removed from the record. The Income-tax Officer stated that on the record there was a clear impression of the removal of the slip which was pasted thereon. These were all relevant facts and circumstances constituting sufficient basis for the conclusion reached by the Tribunal that the assessment orders and notices of demand had been duly served on the assessee as far back as October 24, 1968. 8.6 Under section 282(2)(c), notices meant for an association of persons may be addressed to the principal officer thereof, or to any member of the association as held by Allahabad High Court in the case of Sri Niwas vs. ITO, 30 ITR 381 (All) and by A.P. High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... davit to rebut the statutory presumption of service. The affidavit denying service of notice was filed by the assessee only before the Tribunal. There was no proper rebuttal of the presumption of valid service of notice. The notice dated October 9, 1998, had been validly served. 8.8 The Delhi High Court in the case of CIT vs. Shankar Lal Ved Prakash, 300 ITR 243 (Delhi) wherein the issue relating to burden of proof regarding the service of notice under section 143(2) has been discussed in detail. The Court has observed at page no.248 that the second presumption in section 27 of the General Clauses Act is that, unless the contrary is proved, a letter dispatched by Registered Post would be deemed to have been delivered in the ordinary course of post. Even apart from section 27 of General Clauses Act, section 114 of the Indian Evidence Act, 1872 permits the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in relation to the facts of the particular case. The court while considering the assessee s conduct noticed that the assessment was completed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision cited by the Ld. Authorised Representative, the same are distinguishable on facts. In the case of Nulon India Limited vs. ITO, 216 CTR 142 (Delhi), on the basis of material available, it was found that no notice under section 143(2) of the Act was issued. Similarly, in the case of CIT vs. Silver Streak Trading (P) Ltd., 216 CTR 260 (Delhi), wherein the Tribunal recorded the fact that the impugned notice was served upon the assessee. In the case of ACIT vs. Hotel Blue Moon, 35 DTR 1 (SC) which is also distinguishable on facts as the issue is in respect of notice under section 143(2) of the Act and block assessment under section 158BC wherein it has been held that notice under section 143(2) within the time prescribed is mandatory and omission on the part of the Assessing Officer cannot be a procedure irregularity and the same is not curable. Whereas, in the case under consideration, the Assessing Officer has issued notice under section 143(2) of the Act. The dispute is only in respect of place of notice sent by the Assessing Officer. In the case of CIT vs. Rajeev Sharma, 336 ITR 678 (All) wherein no notice under section 143(2) was issued in case of reopening on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer on 24.01.2008 and repeated his submissions that no notice under section 143(2) of the Act was issued. The ld. Departmental Representative submitted that apart from the basis of TDS certificate and PAN of the assessee, the notice was generated by computer system on the basis of PAN. On consideration of the facts, we notice that the assessee appeared before the Assessing Officer in the assessment proceedings. The notice was sent through Speed Post and the assessee has failed to point out that the assessee received something other than notice under section 143(2) of the Act particularly when the address G-395, Kamla Nagar Agra is the address given of the President of the Society in the memorandum of association and one of the Member of the Executive Committee. Some petty mistake, defect, omission in the notice under section 143(2) of the Act are rectifiable and on the basis of said mistake, defect or omission the assessment proceedings cannot be quashed as provided in section 292B of the Act. The CIT(A) has wrongly held that no notice under section 143(2) has been issued and served on the assessee. 8.14 After considering the totality of the facts of the case, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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