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TMI Blog2016 (1) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the CIT(A) granted relief to the assessee. At the same time, the assessee has also filed cross-objections against the said order. Further, during appellate proceedings before the Tribunal, the assessee pleaded to raise additional ground challenging the validity of assessment order on the ground of no service of notice u/s 143(2) of the income-tax Act, 1961 (for short 'the Act') but this prayer was rejected by the Tribunal vide order dated 26.05.2005. The assessee carried the issue before Hon'ble Jurisdictional High Court of Allahabad in Civil Misc. Writ Petition No.1071 of 2005 which was allowed by order dated 25.01.2006 and the Hon'ble High Court directed this Tribunal to permit the petitioner/assessee to add additional ground No.7, which reads as under:- "That the assessment proceedings and consequential assessment order is without jurisdiction and barred by limitation in view of non service of statutory notice under Section 143(2) within the period allowed as per proviso to Section 143(2) of the Act." 3. We have heard arguments of both the sides and carefully perused the relevant material placed on record, inter alia, paper books of the assessee, paper book of the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) Tele Tube Electronics - 42 DSTC-J69 (Delhi-HC). (ii) CIT Vs. Silver Streak Trading (P) Ltd. - 169 Taxman 16 (Delhi). (iii) CIT Vs. Lunar Diamonds Ltd. - 281 ITR 1 (Delhi). 6. The learned AR vehemently pointed out that admittedly no acknowledgement receipt and even no copy of such notice is available with the Department to prove service u/s 143(2) of the Act and the Department has to prove valid and proper service of notice with positive evidence and in which it has failed. The learned AR submitted that in this situation, viz., failure of the Department to show proper service of the notice, it shall be presumed that the notice was not served upon the assessee within prescribed limitation. 7. The learned AR lastly submitted that the Department has filed a paper book containing some documents including affidavit of Shri Lal Singh, so called notice server, but this claim does not stand proved from these documents as the affidavit of Shri Lal Singh does not mention as to on whom the service had been made. It simplicitor states that service effected on the assessee which is a partnership firm and as per Section 282(2)(a) of the Act, service has to be either on the partner or on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee within prescribed limitation. Thus, the legal ground/additional ground of the assessee may kindly be dismissed. 9. Replying to the above, the learned AR further reiterated relevant part of the assessee's written synopsis and submitted that the onus of assessee stood discharged by way of giving affidavit of assessee's partner Shri Brij Mohan dated 23.03.2005 and all 20 documents submitted by the department in its paper book do not establish proper service of notice within prescribed limit viz. on or before 31.10.1999 either on the partner or authorized person or manager of the assessee partnership firm and therefore, the onus was shifted on the Department/Assessing Officer to establish valid and proper service of the notice u/s 143(2) of the Act which has not been discharged by way of reliable and positive evidence, hence, impugned assessment order may kindly be quashed and additional ground No.7 of the assessee may kindly be allowed. 10. On careful consideration of rival submissions, at the very outset, we respectfully take cognizance of the dicta laid down by Hon'ble Delhi High Court in the case of CIT Vs. Lunar Diamonds Ltd. (supra) wherein it was held that the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... davits of Notice Server Shri Lal Singh and Tax Assistant Shri Tej Singh state that the notice was served upon the assessee and acknowledgement was placed on record but this notice and acknowledgement have not been found in the relevant assessment records and if these actually existed and placed in the file and later on not available in the file, then the Assessing Officer should have taken departmental action on the erring staff and we are unable to see any show cause memo or inquiry notice or any other investigation in this regard which proves that the officials are quite clear in their notions that such so called notice and so called receipt never existed. Since no such notice was prepared and served, the same could not have been available in the assessment records. It is also relevant to mention that as per notice service register page 1 Sr.No.8, notice was served on the assessee on 16.08.1999 whereas the notice server Shri Lal Singh in his affidavit states the date of service as 17.08.1999 which is not reliable. It is also observed that the letter of the Assessing Officer dated 25.05.2006 states that in the notice service register, entry of service is at Sr.No.26 on page 2 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h who, in turn, kept these documents in the relevant assessment record file and the same were misplaced subsequently and hence, on the basis of proof of service of other four assessees during the same period, inference of valid service of notice should be inferred. We further make it clear that the Revenue miserably failed to discharge its onus to show that the notice u/s 143(2) of the Act was validly and properly served upon the assessee within the prescribed limit and hence, the contention of the Revenue is rejected. We are, therefore, of the considered opinion that it is a clear case of non-service of notice u/s 143(2) of the Act within the statutory period as per proviso to Section 143(2) of the Act as existed in the statutory provisions of the Act prior to substitution of new sub-section (2) to Section 143 w.e.f. 01.06.2002 and, therefore, the assessment order cannot be held as sustainable and we quash the same. Accordingly, additional ground No.7 of the assessee is allowed. ITA No.4934/Del/2004 - Revenue's appeal and Cross-objection No.68/Del/2005 of the assessee :- 15. Since by earlier part of this order, we have held that in the present case the Revenue could not establi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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