9911796707
TMI Blog2016 (11) TMI 1619X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011 so as to avoid the limitation expiring on 30/11/2001. Under these circumstances, we find ample force in the plea of the assessee on the issue of wrong assumption of jurisdiction by the Assessing Officer by issuing the instant notice under section 143(2) of the Act. Plea raised by the Revenue is that the assessee had appeared before the Assessing Officer on 10/12/2001 and that on that basis it is sought to be canvassed that, in any case, assessee was aware of the notice under section 143(2) of the Act having been served on 29/11/2001 - as per assessee it is wrong on the part of the Revenue to contend that assessee attended before the Assessing Officer on 10/12/2001 in response to the notice issued under section 143(2) of the Act dated 29/11/2001. We find the aforesaid plea of the assessee quite potent and is in fact supported by the material on record. The Ld. Representative for the assessee had referred to a communication dated 10/12/2001 addressed to the Assessing Officer, wherein it has been communicated that the notice was received on 10/12/2001 itself, which ostensibly is the notice dated 6/12/2001 addressed to the Director of the company. Therefore, the aforesaid ple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A), who has allowed certain relief to the assessee with respect to the additions/disallowances, but so far as the legal point raised by the assessee pertaining to the issue of wrong assumption of jurisdiction of the Assessing Officer under section 143(2) of the Act is concerned, the same has been held against the assessee. The said decision of the CIT(A) is being agitated before us on the basis of Ground of appeal No.2, which we have referred above. 4. The factual matrix in relation to the stand of the assessee on wrong assumption of jurisdiction by the Assessing Officer under section 143(2) of the Act is as follows. The return of income was filed by the assessee on 30/11/2000 and in para-1 of the assessment order, it is recorded by the Assessing Officer that the case has been selected for scrutiny assessment by issuing a notice dated 29/11/2001 under section 143(2) of the Act which was served by affixture at assessee's premises at 1/C, Happy Home, Napean Sea Road, Mumbai 400 006 on 29/11/2001. It is further recorded by the Assessing Officer that on 29/11/2001, the premises was found to be closed and another notice was issued on 23/06/2003 and also served by affix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 143(2) was never served because assessee had appeared before the Assessing Officer on 6/12/2001 and sought adjournment. It has also been argued that the assessee has not objected to such service of notice during the course of assessment proceedings and, therefore, the notice is deemed to be valid in terms of section 292BB of the Act. 7. We have carefully considered the rival submissions. The grievance of the assessee is essentially arising from the provisions of section 282 of the Act dealing with provisions relating to the service of notice. It is sufficient to note for the present, that sub-section (1) of section 282 of the Act prescribes that a notice under this Act may be served on the person therein named either by post or as if it were a summons issued by a Court under the Code of Civil Procedure, 1908 ( 5 of 1908). Factually speaking, para-1 of the assessment order makes it clear that the notice under section 143(2) of the Act issued on 29/11/2001 has been served on 29/11/2001 by affixture. The plea raised by the assessee is that service of notice by affixture could have been resorted to only when the Assessing Officer discharges his initial onus by showing that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision of the Tribunal, inter-alia, holding that the issuance of notice straightway through affixture was not proper, has been approved. 7.2 In the background of the aforesated legal position, we may now examine the fact position in the instant case. In the present case, it is undeniable that the notice under section 143(2) dated 29/11/2001 has been directly served through affixture. The CIT(A) has observed that there was good reason for the Assessing Officer to take this step because of the need to avoid time lag as otherwise the service of notice was becoming time barred. In our considered opinion, the aforesaid cannot be considered to be a reason to justify the service of notice by affixture after by-passing the normal procedure of service of notice. In fact, in the context of such plea of the CIT(A), the judgment of the Hon'ble Delhi High Court in the case of CIT v. Dewan Kraft System (P) Ltd., [2007] 165 Taxman 139 has been relied upon. In this case, the notice was served on the assessee by affixture and it was the case of the Assessing Officer that the notice under section 143(2) sent by speed post could not be served and, therefore, an Inspector was deputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01. Under these circumstances, we find ample force in the plea of the assessee on the issue of wrong assumption of jurisdiction by the Assessing Officer by issuing the instant notice under section 143(2) of the Act. 7.4 Before us, another plea raised by the Revenue is that the assessee had appeared before the Assessing Officer on 10/12/2001 and that on that basis it is sought to be canvassed that, in any case, assessee was aware of the notice under section 143(2) of the Act having been served on 29/11/2001. On this aspect, the Ld. Representative for the assessee pointed out that the appearance by the assessee on 10/12/2001 was in compliance of notice issued by the Assessing Officer on 06/12/2001 in the name of the Director of the assessee company, a copy of which has been placed in the paper book at page 1. It was therefore, contended that it is wrong on the part of the Revenue to contend that assessee attended before the Assessing Officer on 10/12/2001 in response to the notice issued under section 143(2) of the Act dated 29/11/2001. We find the aforesaid plea of the assessee quite potent and is in fact supported by the material on record. The Ld. Representative for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically noted that assessee has participated in assessment proceedings pursuance to the notice being disputed by the assessee. In this background, the Hon'ble High Court noted that even if one was to proceed on the assumption that notice was served neither on the two partners of the assessee firm and that it was served on some person, who was not specifically authorized to receive the notice, yet service of notice could not be invalidated because the very same notice had been complied with by the assessee. Notably, the Hon'ble High Court noticed that the notice issued on 30/12/2004 had fixed the hearing on 05/01/2005 before the Assessing Officer. On 05/01/2005 assessee participated in the proceedings before the Assessing Officer and according to the Hon'ble High Court such participation was to be attributed to the service of the notice on 30/12/2004 albiet upon a person not authorized to receive the same. This fact-situation lead the Hon'ble High Court to conclude that the service of notice could not be invalidated. In our considered opinion, the said judgment of the Hon'ble Delhi High Court does not help the case of the Revenue herein because the fact-situation ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
