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TMI Blog2015 (9) TMI 965X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal by the Revenue under Section 260A of the Income Tax Act, 1961 ('Act') directed against the order dated 28th November 2002 passed by the Income Tax Appellate Tribunal ('ITAT') in ITA No. 2820/Del/95 for the Assessment Year ('AY') 1991-92. 2. On 6th January 2004, this Court framed the following question of law: "Whether the ITAT is right in holding that notice dated 30th December 1992 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of the Appellate Tribunal Rules, 1963?" 4. The facts are that the Assessee filed its return of income for AY 1990-91 on 17th December 1990. The case was picked up for scrutiny and notice under Section 143(2) of the Act was issued on 26th June 1991. In terms of the said provision, as it then existed, the notice was to be served on the Assessee on or before 30th June 1991. The case of the Assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no such notice had been served upon it. Since the presumption of service of notice was rebuttable and an affidavit had been filed by the Assessee, the ITAT accepted the Assessee's contention that there was no service of notice under Section 143(2) of the Act. Therefore the assessment under Section 143(3) was held to be bad in law. 5. As far as ITA No. 149 of 2003 is concerned, the plea of the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of the Supreme Court in ACIT v. Hotel Blue Moon (2010) 321 ITR 362 (SC) where the Supreme Court has categorically held that the service of the notice under Section 143(2) of the Act upon the person to whom it is addressed is mandatory requirement. For the purposes of Section 282 (1) of the Act, it is seen that unless the person upon whom the notice was served is "an agent empowered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely from 1st April 2000. In that view of the matter, the question is answered in favour of the Assessee and against the Revenue. 9. As far as ITA No. 14 of 2002 is concerned, the decision of the ITAT has purely turned on facts. The notice was admittedly not served on the Principal Officer of the Assessee prior to 30th June 1991. The reliance by the ITAT on an affidavit filed by the Principal Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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