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TMI Blog2016 (3) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... ee himself is responsible, if at all the notice was not received by him at the old address. In the circumstances, the assessee failed to rebut the presumption of valid service. The assessee has failed to rebut the presumption that was raised against him about the due service of the notice u/s 143(2) of the Act. Hence, we hold that the Assessing Officer has complied the requirement of service of notice under Section 143(2) of the Act and notice dated 21.07.2008 was served validly. - Decided against assessee Jurisdiction of Income Tax Officer to issue notice - Held that:- Income Tax Officer was in addition to the income or class of income specified in schedule was also authorized in respect of all income or class of income. In view of clear position of the authority of the Income Tax Officer in issuing notice, the claim of the assessee that the Income Tax Officer was not having jurisdiction is without proper appreciation of the facts and thus the ratio of the case law relied upon by the assessee is not applicable over the facts of the case in hand, hence, this grounds of the assessee is dismissed. - Decided against assessee Transfer of case - whether no order under Section 127 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment proceedings were initiated by Income Tax Officer, Ward 19(4) and there was no order u/s 127 of the I.T. Act transferring the case to the Addl. Commissioner. 4. That the learned Commissioner of Income Tax(Appeals) erred, after holding that this estimation of income is without any basis and without any reasoning , in disallowing the business loss of ₹ 15,64,394/- and deduction of property tax of ₹ 37,528/-, when these were not even the subject matter of appeal before her. 5. That, at any rate, on the facts and circumstances of the case, the learned Commissioner of Income Tax(Appeals) erred in disallowing the business loss of ₹ 15,64,394/- and deduction of property tax of ₹ 37,528/-. 3. The facts in brief of the case as culled out from the orders of lower authorities and the assessment folder which was presented before us at the time of hearing are that the assessee filed his return of income for the assessment year under consideration on 26.10.2007, declaring total income of ₹ 58,99,680/-. The case was selected for scrutiny under CASS and notice under Section 143(2) of the Income-tax Act, 1961 (for short the Act ) was issued by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19(1), New Delhi and the assessee was not aware of subsequent order vesting the jurisdiction of the case of the assessee with the Addl. Commissioner of Income Tax. In response to the letter of the Authorized Representative, the Addl. Commissioner of Income Tax replied that the first notice was issued to the assessee on 23.07.2008 which was sent through speed post and therefore, the first notice issued was well within one year of the filing of the return. She also explained that the jurisdiction to her was assigned under the order of concurrent jurisdiction. The Addl. Commissioner of Income Tax again fixed the case on 09.11.2009 through a notice issued under Section 143(2) of the Act. In response to which, the Authorized Representative again objected the assessment proceedings on both ground i.e. service of first notice as well as jurisdiction of Addl. Commissioner of Income Tax. The notice dated 04.11.2009 was sent on new address provided by the ld. Authorized Representative. Again on 20th November, 2009, the ld. Authorized Representative filed objection challenging the service of notice as well as jurisdiction of Addl. Commissioner of Income Tax. The Authorized Representative also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... post at the address of the assessee, was not served. He further submitted that the Assessing Officer relying on the provisions of Section 27 of the General Clauses Act held that the mandatory notice under Section 143(2) of the Act was served on the assessee whereas the assessee had rebutted the presumption of service by categorically denying on affidavit that he had received the notice issued on 21.07.2008 by ITO, Ward 19(4), New Delhi. In support of his contention, he relied on the judgment of the Hon ble Delhi High Court in the case of CIT Vs. Silver Streak Trading P. Ltd., (2010) 326 ITR 418 (Delhi) and CIT Vs. Messrs Lunar Diamonds Ltd., (2006) 281 ITR 1 (Del. ). 5.2 On the other hand, learned Sr. Departmental Representative relying on the findings of the lower authorities submitted that merely filing of an affidavit denying receipt of the letter sent through speed post was not sufficient to rebut the presumption of service of notice when the notice was duly sent by speed post at the address given in the return of income. He further submitted that the assessee in the affidavit has made self serving averments and no documentary evidence has been brought on record whereas the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... include service by speed post as well. In the cases of CIT Vs. Silver Streak Trading P. Ltd., (supra) cited by the assessee, it was claimed by the assessee that the return of income was filed on November 30, 1997 and a notice under section 143(2) of the Act was issued by the Assessing Officer through speed post on November 28, 1998 but the assessee claimed that said notice was not ever received and a duplicate copy of notice dated October 21,1999 was received by the learned counsel of the assessee, who endorsed the office copy with the remark time barred notice received and this was followed by an affidavit by the assessee stating that it had not received any notice prior to the notice dated October 21, 1999. The Hon ble Court held that in such a case onus was on the Revenue to show that the notice dated November 28, 1998 was in fact served on the assessee within the time prescribed by the law and the Revenue had not been able to discharge its onus either before the Tribunal of before the Hon ble Court and the appeal of the Revenue was dismissed holding that no substantial question of law arose. In the CIT Vs. Messrs Lunar Diamonds Ltd., (2006) 281 ITR 1 (Del. ) again similar i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch has been proved by the receipt number of speed post and the notice has been sent at correct address, it is presumed that the notice was delivered to the assessee. The relevant paragraph of the judgement is reproduced as under: 14. From a bare perusal of the order-sheets, shown to us by the assessee, started from dated 24.10.2007, it is clear that in the ordersheet dated 24.10.2007, on the top of it, the name and address of the assessee was mentioned and thereafter it was ordered that notice under Section 143(2) be sent. The notice, in fact, was sent on 24/25.10.2007 and its receipt number is given in the order of the Assessing officer which is, receipt no. 4544 and Speed post number is also given which is EE875408254 IN, dated 25.10.2007. So far as dispatch of the notice under Section 143(2) of the Act of 1961 is concerned, that question is fully proved. 15. Learned counsel for the appellant vehemently submitted that mere proof of dispatch of post is not the proof of service of the notice upon the receiver. 16. In a matter of service through post, there are certain ways whereby notices are sent through department of post. In this case, as we have already discus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at the time at which the letter would have been delivered in the ordinary course of business when it is sent to the addressee at his address by registered post. Details given in the assessment order as also receipt of speed post make it clear that all the conditions stipulated by section 27 of the General Clauses Act are satisfied and hence service of the impugned notice would be deemed to have been effected well before the expiry of time limit stipulated by section 143(2) as the said notice was sent several months before the expiry of period stipulated by the time provision of section 143(2). 27. Non-rebuttal of Statutory Presumption: The legal fiction created by section 27 of the General Clauses Act by which service is deemed to have been effected would continue to be operative unless the party denying the service proves that it was not really served and that he was not responsible for such the absence of proof by the party denying the service that he has not received it or that he was not responsible for its non-service, the legal fiction created by section 217 of the General Clauses Act cannot be displaced. In V Raja Kumari v. P Subbararna Naidu AIR 2005 SC 109, the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s should be correctly written over the notice and the envelope containing the notice and the envelope should be delivered to the postal authorities for service. (iii) The Revenue should show the receipt of postal authorities and/or tracking number of post office to establish valid dispatch of notice, (iv) If the notice is not returned then it shall be presumed that it was served validly. (v) The presumption can be rebutted by the assessee by filing evidences in support but the rebuttable by merely word of mouth of the assessee that he did not receive the notice are not sufficient for establishing rebuttal of presumption 7.8 Now when we revert back to the facts of the assessee, we find that in the case of the assessee the notice was sent though speed post and the receipt of postal authorities is available on record. The Assessing Officer has also submitted that the said notice was not returned back. The assessee has however filed an affidavit claiming that said notice was not received. Thus , in the case of the assessee the dispute lies whether the presumption stands rebutted by the assessee or not. The assessee has filed an affidavit stating that said notice was not ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was not the Assessing Officer in terms of the jurisdictional order bearing Order no. Addl.CIT/R-19 /2005-06/356, dated 31.03.2006, copy of which is placed at page 11 of the assesee s paper book. 8.1 Learned Authorized Representative of the assessee submitted that the return of income of the assessee was more than the limit prescribed for the jurisdiction of the Income Tax Officer. He drawn our attention to the order dated 31.03.2006 issued by the learned Addl. Commissioner of Income Tax specifying the jurisdiction. Learned Authorized Representative further relied on the judgment of the Hon ble High Court of Delhi in the case of Sunworld Infrastructure Pvt. Ltd. Vs. Income Tax Officer, WP(C) No. 1741/2015 C.M. No. 3112/2015. 8.2 On the other hand, learned Senior Departmental Representative drawn our attention to the order dated 31.03.2006 of the learned Addl. Commissioner of Income Tax and stated that the Income Tax Officer was also having jurisdiction in respect of the income or class of income. He submitted that the learned Authorized Representative has not noticed last sentence of para no. 1 of the order. 8.3 We have heard the rival submissions and perused the materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Hon ble Delhi High Court in the case of Valvoline Cummins Limited Vs. Deputy Commissioner of Income Tax Others, (2008) 307 ITR 103 (Delhi). 9.1 On the other hand, learned Sr. Departmental Representative submitted that the order passed by the Addl. Commissioner of Income Tax was well within his jurisdiction and he distinguished the judgment in the case of Valvoline Cummins Ltd. (supra) stating that the said judgment was in respect of recovery proceedings initiated by the Deputy Commissioner of Income Tax subsequent to the completion of assessment by the Addl. Commissioner of Income Tax and therefore the facts of the case were not applicable to the facts of the assessee s case. 9.2 We have heard the rival submissions and perused the record. We are agreed with the contention of the learned DR that the ratio of Valvoline Cummins Ltd.(supra) is not applicable to the facts in the assessee s case. As regard to the contention of the learned Authorized Representative that no order under Section 127 of the Act was passed by the Commissioner of Income Tax, the ld. Sr. DR has submitted that the Addl. Commissioner of Income Tax was provided concurrent jurisdiction over the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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