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TMI Blog2013 (7) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... te, Mr. S. Sharma, Advocate, Mr. A. Hazarika, Advocate, Mr. B. Chakraborty, Advocate For the respondents : Mr. R. Goenka, Advocate, Mr. U.K. Borthakur, Advocate Mr. A. Goenka, Advocate, Mr. D. Sahu, Advocate JUDGMENT (Ansari, J.) This is an appeal under Section 260A of the Income Tax Act, 1961, (in short, the Act) impugning the order, dated 19.03.2010, passed, by the learned Income Tax Appellate Tribunal, Guwahati Bench, in ITA No.132 (Gau)/2007, for the assessment year 2002-2003, whereby the learned Tribunal has allowed the appeal of the assessee-respondent by taking the view that the assessment, which was challenged in the appeal before the learned Tribunal, being without service of any notice under Section 143(2) or 142(1) of the Act, was illegal and void ab initio. 2. The appeal has been admitted, on the following substantial question of law for hearing: Whether on the facts and in the circumstances of the case, the Tribunal was justified and correct in law in declaring the assessment order as illegal and void ab initio and in canceling the same by holding that no notice under Section 143(2) or 142(1) of the Income Tax Act, 1961, was served on the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein was that of the assessee-respondent inasmuch as the PAN Number, mentioned on the notice, dated 02.12.2003, was AGNPG 1745 K and the address, mentioned in the notice, was Flat No.B-2, Shankar Madhab Housing Society, P.O. Pandu, Pandu, Guwahati, Assam; whereas the assesse s PAN Number is ACLPG 5721 KFG and her address is Proprietor, M/s. Ghosh Brothers, Barthakur Mill Road, Ulubari, Guwahati. (iv) Thus, according to the assessee-respondent, since none of the notices, issued by the Assessing Officer, concerned the assessee-respondent, the assessee-respondent was not bound to comply with the same and, consequently, the assessee-respondent pleaded before the CIT(A) that the ex parte assessment, made by the Assessing Officer, on 31.03.2005, without serving any notice, as warranted by Section 143(2) and Section 142(1) of the Act, was illegal and untenable in law. (v) The CIT(A) did not, however, agree with the assessee-respondent s contention and rejected the same by observing, in brief, thus: As per the return filed by the assessee, on 26.03.2003, for the year 2002-2003, PAN No. ACPPG 9406M and the assessment record, including confidential folder, shows that the computer genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e materials on record. If the view, which has been taken by the learned Tribunal, is one of the possible views, then, this Court, in exercise of its appellate jurisdiction, would not interfere with such a finding of fact. 6. Coupled with the above, what also needs to be noted is that the assessee-respondent s case was that the assessee-respondent had filed her return, for the assessment year 2002-2003, on 26.03.2003 and, hence, the assessment had to be made within a period of two years from the date of filing of the return. Looking from this angle, the assessment order, made under Section 144, on 31.03.2005, was, according to the assessee-respondent, barred by limitation inasmuch as the assessment order, if any, under Section 144, ought to have been made on or before 25.03.2005. 7. In the backdrop of what have been pointed out above, let us, now, come to the learned Tribunal s order, which stands impugned in this appeal. In this regard, it is of immense importance to note that the learned Tribunal has clearly observed, setting out the case of the assessee-respondent, that so far as assessee was concerned, it had claimed to have received notices under Section 143(2) and 142(1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02-2003, but no such evidence had been brought to the learned Tribunal s notice or has been placed on record. In the words of the learned Tribunal, since it is well settled law that to establish the service of a notice upon the assessee, the initial onus is on the Revenue and unless and until this onus is discharged, the service of a notice simply, on the basis of presumption and assumption, cannot be accepted. The learned Tribunal has also pointed out that the acknowledgement slip, in the case at hand, clearly mentions the assessment year 2001-2002 and, therefore, in the absence of any material brought to its notice by the Revenue, it was unable to accept the CIT(A) s finding that the assessment year, mentioned in the acknowledgement slip, was a mere mistake. 10. We may pause here to point out that the finding, so recorded, as indicated by the learned Tribunal, was a question of fact and this finding cannot be said to have been reached by ignoring any material fact or without any rationale or reasonable cause having been assigned therefor. 11. Situated thus, the finding of fact, so recorded by the learned Tribunal, cannot be described as perverse. This apart, when the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee or in the record. The availability of original copy of notice dated 02.12.2013, which according to the revenue were not related to the assessee being with the assessee, the scale of justice goes in assessee s favour that notice served upon the assessee on 1st March, 2004, as per acknowledgement copy at page 10 of the revenue s paper book, where the notices issued with PAN ACKPG 5721G and address to Smt. Gita Rani Ghosh, Prop of M/s. Ghosh Brothers, Sony Apartment, Ulubari, Guwahati-7, meaning thereby that even if it assumed that AO had come to know of his mistake of having prepared notices under the wrong name, then also the revenue having no material to establish that it was the second set of notices, which was served upon the assessee cannot be accepted. 7.8. Without prejudice to the above and without admitting that it was the second set of notice which was served upon the assessee, there is another reason for not accepting the revenue s case and the reason is that after AO had come to know of having issued notices in wrong name and corrected the same by issuing second set of notices, then this fact could have been mentioned in the order sheet which is not the case. S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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