9911796707
Advanced Search 
TMI Blog2011 (5) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal. The Tribunal dismissed the appeal filed by the revenue and allowed the appeal filed by the assessee. The Tribunal recorded that the service of notice u/s 148 was not valid and, consequently, the assessment order was annulled. Hence, the present appeal by the revenue. HELD THAT:- It is not disputed that in the return which was filed by the assessee, it was mentioned that the same was filed in response to notice u/s 148. No objection regarding valid service of notice was raised before the AO. Once that is so, the argument of the assessee that there was no valid service of notice u/s 148 fails. The Tribunal was, thus, in error in concluding otherwise and holding the proceedings to be invalid. Suffice it to notice, that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d grounds? (ii) Whether assessment order can be termed invalid merely by the reason of any mistake or omission in service of notice when Section 292B of I.T. Act, 1961 states that if the proceeding is in substance and effect in conformity with or according to the intent and purpose of I.T. Act, 1961, the assessment proceedings cannot be termed invalid merely by reason of any mistake, defect or omission in the notice?" 3. Briefly stated, the facts necessary for adjudication as narrated in the appeal are that the assessee filed return on 26.11.1998 declaring nil income after adjusting brought forward losses of ₹ 8671/-. The said return was processed under Section 143(1)(a) on 30.8.1999 granting refund of ₹ 3,50,280/- including i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the service of notice under Section 148 of the Act was not valid and, consequently, the assessment order was annulled. Hence, the present appeal by the revenue. 5. We have heard learned counsel for the parties. 6. Learned counsel for the revenue submitted that the notice issued under Section 148 of the Act was validly issued on 12.3.2003 and was duly served through affixation on 23.3.2003. The said service was in accordance with the provisions of Section 282 of the Act. It was further submitted that the notice under Section 142(1) of the Act was issued to the assessee and in response thereto an appearance was put by the assessee on 10.2.2004. The reassessment order was passed on 17.3.2004 after affording final hearing on 12.3.2004. Thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason of any mistake, defect or omission, if such return in substance and effect is in conformity with or according to the intent and purpose of the Act. 7. On the other hand, learned counsel for the assessee supported the order passed by the Tribunal. He submitted that the defect in the service of notice was jurisdictional defect which was not curable in terms of Section 292B of the Act. He placed reliance on the following judgments:- I. (1973) 88 ITR 374 (Cal) II. (2002) 253 ITR 334 (Gau) III. (1963) 47 ITR 775 (Ker) IV. (1999) 238 ITR 694 (Cal) V. (1977) 110 ITR 27 (ALL) VI. (1983) 139 ITR 73 (P&H) VII. (1959) 35 ITR 388 (SC) VIII. (1967) 66 ITR 147 (SC) IX. (1983) 144 ITR 954 (All) 8. Rebutting the arguments of the revenue r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment or reassessment proceedings, it shall be presumed that the assessee has been validly served and it shall not be open to the assessee to object that the notice was not served upon him or was not served in time or was served upon him in an improper manner. However, an exception to the aforesaid presumption has been made in a case where such objection has been raised before completion of assessment or reassessment. The provision has been made effective from 01.04.2008 and therefore, shall apply to all pending proceedings. The Central Board of Direct Taxes issued circular No. 1 of 2009 dated 27th March, 2009 (2009) 310 ITR (St.) 42 giving explanatory notes on the provisions relating to direct taxes contained in Finance Act, 2008. Cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed in response to notice under Section 148 of the Act. No objection regarding valid service of notice under Section 148 of the Act was raised before the assessing officer. Once that is so, the argument of the assessee that there was no valid service of notice under Section 148 of the Act fails. The Tribunal was, thus, in error in concluding otherwise and holding the proceedings to be invalid. 14. Suffice it to notice, that the plethora of judgments on which learned counsel for the assessee had placed reliance, does not advance the case of the assessee as either in those cases, Section 292BB or Section 292B of the Act was not under consideration or it was on individual fact situation involved therein that the cases had been decided. 15. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
