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TMI Blog2014 (4) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... Non-production of original files – Held that:- Inspite of earnest efforts made by the revenue, they could not get the original records and only photocopy of the acknowledgement was produced before the Tribunal - the acknowledgement in photocopy produced before the Tribunal was not denied by the assessee as not pertaining to the assessee - the photocopy could only be of the secondary evidence on the service of notice, yet when there was no denial from the assessee as regards the photo copy of the acknowledgement as relatable to the assessee's case and that in subsequent communication between the assessee and the Revenue, the notice sent by the Revenue was also acknowledged by the said Sashi Prakash Khemka, the contention of the assessee that there was no proper service on the assessee can only be seen as an afterthought to wriggle out of the assessment proceedings – thus, the order of the Tribunal is set aside – Decided in favour of Revenue. - Tax Case (Appeal) No. 2720 of 2006 - - - Dated:- 7-4-2014 - Chitra Venkataraman And T. S. Sivagnanam,JJ. For the Appellant : Mr. T. Ravikumar Standing Counsel for the Income Tax Department For the Respondent : No appearance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1961 on 15.12.1994, the assessee represented by one V.D.Agarwal filed a letter on 07.10.1996 objecting to the service of notice under Section 143(2). The assessee was informed that the notice was served in the address given by her. Subsequently, the assessee's representative filed a letter on 12.03.1997 and after hearing the assessee's representative the assessment was finalised. 4. For the purpose of considering the merits of the Tax Case (Appeal), we are not going into the details of the assessment made since the question raised is purely on the service of the notice. Aggrieved by the said order, the assessee went on appeal before the Commissioner of Income Tax (Appeals) where the assessee was represented by M/s.Sashi Prakash Khemka and V.D.Agarwal, CA. In the written submission filed, the assessee pointed out that the assessee was not having any records and due to personal dispute with one Ravi Prakash Khemka, the assessee could not receive the earlier records. Then on inspection of the Assessing Officer's records the assessee contended that there was no valid service of notice on the assessee and the certified copy of the document in evidence of service of no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, was rejected. 5. Aggrieved by this, the assessee went on appeal before the Income Tax Appellate Tribunal. So too, the yet another assessee Mr.Shashi Prakash Khemka. 6. A reading of the order of the Income Tax Appellate Tribunal show that the contentions taken by the respective assessee were one and the same. The Tribunal allowed the appeal filed by the assessee by following the order in the case of Shashi Prakash Khemka. It observed that for proving the service of notice, the Department had not filed proof of service of notice upon the assessee. It further pointed out that the assessee contended that the notice had been served on an imaginary recipient instead of the assessee. The acknowledgement did not have proper address. Consequently, the assessment being a time barred one not valid in the eye of law. 7. A reading of the order of the Tribunal shows that no where the assessee had contended that the notice was served in the address different from what was given in the return nor were there any explanation as to why the assessee had not given intimation as regards the change of address, assuming for a moment that the assessee had shifted her place of residence. The ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. We find from the facts culled out from the records placed that the said Sashi Prakash Khemka had been consistently representing the case of the assessee and he had also acknowledged the receipt of the notices, photocopy of the acknowledgement for the service of notice and there being no denial by the assessee that the said Sashi Prakash Khemka was representing the interests of the assessee before the Income Tax Authorities, we hold that it is too late in the day for the assessee to state that the service of notice was not on a proper person. 12. The burden is on the assessee to show that the person who received the notice was not an authorised representative. Even in the absence of a written authorisation, when in all the earlier proceedings, the assessee was represented by a particular person and all action had been taken based on the representation of the said person and the said person alone was representing the interest of the assessee, it is not open to the assessee in future to contend that there was no authorisation on such person to represent the case of the assessee. 13. We may note that in the case on hand, the said Sashi Prakash Khemka had represented the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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