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TMI Blog2021 (12) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court in the case of CIT Vs. Lunar Diamonds Ltd. (supra) held that the burden is on the revenue to prove that notice was served within time and when assessee has filed an affidavit stating that it had not received the notice, then the burden was on the revenue to prove that notice was served upon the assessee within the prescribed limit. Here the revenue has failed to prove service on the assessee as stated above. Accordingly, we hold that failure to serve the notice on the assessee within the prescribed statutory time limit, assessment proceedings become void ab initio and consequently the assessment order is quashed - Decided in favour of assessee. - ITA. No. 342/Del/2013 - - - Dated:- 7-12-2021 - Shri Amit Shukla, Judicial Member And Shri Anadee Nath Misshra, Accountant Member For the Assessee : Shri T. R. Talwar, Advocate; For the Department : Shri H. K. Chaudhary [CIT] D.R.; ORDER PER AMIT SHUKLA, J. M. 1. This appeal by the assessee is filed against the order dated 31.10.2012 passed by the Commissioner of Income Tax (Appeals) XXIII, New Delhi, for assessment year 2008-09. 2. The grounds raised by the assessee are as under:- 1(a) That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitrary, unreasonable and liable to be set aside. 4(a) That there was no justification with the learned C.I.T. (A) in sustaining addition of total cash deposit of ₹ 1,30,90,000/- and deposit of ₹ 22,00,000/- and ₹ 35,00,000/- by cheque / transfer in the bank account of the appellant without appreciating that out of refund of advance money of ₹ 1,70,20,000/- received by the appellant, an amount of ₹ 22,00,000/- and another amount of ₹ 35,00,000/- were received by cheque which represented sources of deposits added as unexplained investment / deposit in the bank account. Evidence of transactions led and explanation tendered regarding the sources of money advanced in the earlier years have been brushed aside in order to provide a ground for making the addition and the impugned addition being against the facts and contrary to authoritative judicial pronouncements is liable to be deleted. (b) That the learned C.I.T (A) was not justified in computing the profit of ₹ 10,00,000/- on the sale of agricultural land at Jodhpur on wholly erroneous and unsustainable grounds and addition sustained to the extent of ₹ 10,00,000/- in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he return of income filed by the assessee on 22.07.2008 for assessment year 2008-09 is E-914, Chitranjan Park, New Delhi. It is even evident from the assessment order also as the address mentioned is that of Gurgaon and not of New Delhi. Thus, it has been contended that there was no valid service of notice within the statutory period and accordingly entire assessment order is bad in law. Ld. Counsel for the assessee submitted that the notice under Section 143 (2) was required to be sent to E-914 Chitranjan Park, New Delhi and not at the address 1417/3 Gali No. 7 Rajiv Nagar Gurgoan. The correct address for the purpose of service of valid notice, which has been emphasized by various courts, is the address which is given in the return of income filed by the assessee, or from where he is carrying on his business. In support he relied upon the judgment of the Hon'ble Delhi High Court in the case of CIT V. Madhsy Films Pvt. Ltd. (2008) 301 ITR 69 (Delhi) wherein the Hon ble Court held that the notice need to be sent at the address as per the return. Ld. Counsel further relied upon the Delhi High Court in CIT v. Hotline International P. Ltd. (2008) 296 ITR 333 (Delhi) that where a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amonds Ltd. (2006) 281 ITR 1 (Delhi) 5. On the other hand, the ld. DR submitted that the following facts should be considered:- In the above case, it is humbly submitted that the following facts may kindly be considered: 1. Notice u/s 143(2) of. I.T. Act was duly issued on 19.08.2009 and sent by registered post on 22.08.2009. The notice was not received back unserved. A copy of the notice issued and slip of speed post is enclosed. 2. The notice was sent at the address mentioned in PAN database of the assessee on the date of issue of notice. The assessee has filed Form No. 35 showing the same address which proves that the address at which the notice was sent to was correct. 3. As pointed out by Ld. CIT (A) on Page 24 no possible explanation has been provided by the assessee as to why notices admittedly issued at the correct addresses were never received by him. It is also requested that following decisions may kindly be considered with regard to service of notice u/s 143(2) of I.T. Act: 1. CIT Vs Madhsy Films (P.) Ltd. [2008] 175 Taxman 347 (Delhi)/2008 301 ITR 69 (Delhi)/2008] 216 CTR 145 (Delhi) (Copy Enclosed)where Hon ble Delhi High Court held that where not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income Tax Act, 1961 was issued fixing the date for 15.09.2010. None attended on this date again. 7 Ostensibly, if a jurisdictional notice under Section 143(2) has been sent on a wrong address, then there cannot be any presumption under the law that it has been served on the assessee in accordance with law. It is not that the Assistant Commissioner of Income Tax, Circle : 1, New Delhi, (the present Assessing Officer) was not aware of the address as this was mentioned in the return of income because in para 3.1 he mentions that show cause notice was issued on both the addresses, i.e., the address of Gurgaon and New Delhi, both which is evident from the following passage in the assessment order:- The above show cause notice was sent at both the addresses of assessee i.e. 1417/3, Gali No. 7, Rajiv Nagar, Gurgaon, Haryana and on E-914, Chittaranjan park, New Delhi through speed post No. SPED710276260IN and No. SPED867576785IN on 8.12.2010. However, no compliance is made on the date fixed. Nobody has in fact attended the proceeding till date. 8. This issue was also challenged before the ld. CIT (Appeals) when the ld. CIT (Appeals) had rejected the contention, after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f notice is denied. In these circumstances, the sole testimony of the appellant that notice was not served upon him cannot be believed. The Delhi High Court has held in the case of CIT vs Yamu Industries Ltd (2008) 167 Taxman 67, that where notice under section 143(2) sent by registered post to the correct address of the assessee had not been received back unserved, within a period of 30 days of its issuance, there was a presumption under law that the said notice had been duly served upon the assessee within the period of limitation. Hence the appellant's ground of appeal No. 1 that the assessment order is devoid of jurisdiction and has been passed without granting proper opportunity, is denied. 9. The ld. CIT (Appeals) has tried to justify that even if the notice under Section 143(2) of the Act as mentioned in the AIR information i.e. Gali No 7, Rajiv Nagar, Gurgaon, has been sent, then also it is a valid service of notice. However, nowhere he has countered the assessee s affidavit and the submission that notice was either served on the assessee personally or at the address mentioned in the return of income. 10. Section 143(2) of the Act provides that:- [(2) Where ..... X X X X Extracts X X X X X X X X Extracts X X X X
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