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TMI Blog2015 (8) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 by registered speed post at the address of the assessee available with the department. Subsequently, notice u/s 142(1) was issued on 22.06.2010. As per para 2 of the assessment order the assessee appeared before the AO on 24.11.2010 and objected that notice u/s 143(2) had not been received. The objection was rejected holding that the record showed that it had been sent through speed post at the current address of the assessee and as per the information on record, it had not been returned unserved with any postal comments. Pursuant to this relying upon the case of Capital Gem Overseas (P.) Ltd. vs ITO (ITAT, Del) 101 ITD 117; Ramesh Khosla vs ITO & Anr. (P&H) 155 ITR 556; CIT vs Yamu Industries Ltd. [2008] 167 Taxman 67 (Delhi), the AO rejected the claim of the assessee as an after thought holding as under:- "Further, it is important to note here that as per records the assessee's authorized representative has attended the hearings on the following dates 02.07.2010, 23.08.2010, 02.09.2010, 15.09.2010, 22.10.2010 & 19.11.2010 and no where he has raised the issue of non-receipt of notice under Sec.143(2). Only when the show case was issued to him to clarify as to "why not the loss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round of appeal taken by the appellant of non service of notice 143(2) is dismissed." (emphasis provided) 5. The Ld. AR relying upon the finding recorded in the assessment order submitted that in view of the fact that the CIT(A) has not given a positive finding holding that notice u/s 143(2) has been issued the assessment deserves to be quashed. Inviting attention to the decision of the Jurisdictional High Court in the case of CIT vs Lunar Diamonds Ltd. [2006] 281 ITR 1 (Del.) it was his submission that the said prayer is fully supported by this decision of the Jurisdictional High Court. 5.1. Inviting attention to the assessment order page 2, it was his submission that it was incorrect on the part of the AO to state that the objection to nonreceipt of notice u/s 143(2) was made only on 24.11.2010. Referring to the said order it was stated by the Ld.AR that the assessee before the AO was also represented by him and in this background he stated that he was making a statement at bar stating he appeared for the assessee before the AO and had repeatedly pleaded this fact orally before the AO on each of the dates mentioned by the AO and only when the AO adamantly insisted that the is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arged with due care and caution by the tax authorities and is never taken lightly by the department. In the circumstances, it was her request that the ITAT as the last fact finding authority may, in the facts of the present case, step in and correct the shortcoming noticed and pointed out in the order by the parties and correct the wrong at the stage at which it has occurred by setting aside the order and restoring the issue back to the file of the CIT(A) directing him to return a positive finding whether notice u/s 143(2) has been served or not. Quashing the assessment in the peculiar facts and circumstances, it was submitted, would not meet the ends of justice. The personal thoughts/opinions of the CIT(A) having travelled to the finding, it was submitted, cannot distract from the factual position that as per record the notice u/s 143(2) has been served. The assessment it was submitted on facts cannot be quashed relying upon CIT vs Lunar Diamonds Ltd.(cited supra) as canvassed by the Ld. AR as the said decision proceeded on its own peculiar facts and was distinguishable on facts. Reliance instead was placed upon CIT vs Madhsy Films Pvt. Ltd. 301 ITR 69 (Del.). 6.3. It was reitera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid the tax in any manner setting out clearly the date, time and place for the hearing. Thus in case where on a challenge posed by the taxpayer the Revenue is unable to prove on the basis of record that the service of notice u/s 143(2) of the Act has been affected on the taxpayer then the consequences in law for this error in procedure necessarily follow. The statutory mandate insulates the tax payer in the event the return filed by it is varied to its disadvantage by not first putting the assessee to notice of the said intention by the Assessing Officer by issuance of notice u/s 143(2) of the Income Tax Act, 1961. In the said background we find that if the basis of the afore-said finding of the CIT(A) is his personal knowledge, then it opens a mine field of defence for inaction of the Revenue and if the view expressed in the findings of the Ld.CIT(A) is accepted, it will amount to accepting and endorsing the inability at the field level of the Department to monitor whether notice u/s 143(2) has been served upon the assessee or not. Either of the conclusions are fraught with grave dangers to the system and required to be addressed at the earliest. 8. However, before we address th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where their Lordships addressing the lapses committed by the department were moved to observe in para 16:- "It has been said that the taxes are the price, we pay for civilization. If so it is essential that those who are entrusted with the task of calculating and realizing that price should familiarize themselves with the relevant provisions and become well versed with the law on the subject. Any remission on their part can only be at the cost of the national exchequer and must necessarily result in loss of revenue." (emphasis provided) 10. It need not to be emphasized that it is the issuance of notice u/s 143(2) which empowers the AO to pass an order u/s 143(3) and in case the AO is unable to ensure the service of the said notice then relying upon the principles settled by the Apex Court in the case of Parsuram Pottery we did wonder why the assessment made in the absence of notice u/s 143(2) should not be quashed. The said course of action in the peculiar facts of the case contemplated at the time of dictation on consideration was given up on account of the facts recorded in the earlier part of this order, namely that the facts are not ascertained as the Ld.CIT(A failed to giv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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