M/s Vashistha Builders & Engineers Pvt. Ltd., New Delhi V. DCIT, New Delhi

CO 199/DEL/2011

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 9831 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 6 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 30-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 25-08-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 24-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMEER SHARMA
• Assessee Lawyers: R B GUPTA; V K SABARWAL
• Keywords: Period of limitation; Assessment record
• Section: 143(3); 6; 11; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H , NEW DELHI BEFORE SHRI I.C.SUDHIR, JUDICIAL MEMBER & SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ITA NO. 2546/DEL/2011 ASSESSMENT YEAR: 2007 - 08 DCIT VS. VASHISTHA BUILDERS & ENGINEERS PVT. LTD CIRCLE 17(1) 52, 2 ND FLOOR, SARAI JULENA NEW D ELHI NEW DELHI AABCV3687L (APPELLANT) (RESPONDENT) C.O. NO. 199/DEL/2011 (IN ITA NO. 2546/DEL/2011) VASHISTHA BUILDERS & ENGINEERS PVT. LTD. VS. DCIT 152,2 ND FLOOR, CIRCLE 17(1) SARAI JULENA NEW DELHI NEW DELHI AABCV3687L (APPELLANT ) (RESPONDENT) APPELLANT BY : SHRI V.K. SABARWAL, ADV. & MR. R.B.GUPTA, CA RESPONDENT BY : SHRI SAMEER SHARMA, SR. DR. ORDER PER I.C.SUDHIR, J.M : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST ORDER OF CIT(A) - XIX, NEW DELHI DATED 28.02.2011 AND PERTAINS TO ASSESSMENT YEAR 2007 - 08. 2 ITA NO. 2546/DEL/2011 2. IN ITS CROSS OBJECTION, THE ASSESSEE HAS RAISED OBJECTION AGAINST THE ACTION OF THE LD. CITA TO VALIDATE AND UPHOLD THE PROCEEDINGS CONDUCT ED U/S 143(3) OF THE ACT BY THE ASSESSING OFFICER VIDE HIS ORDER DATED 28.2.2011. 3. SINCE, THE ISSUE RAISED IN OBJECTION NO. 1 GOES TO THE ROOT OF THE MATTER, WE PREFERRED TO ADJUDICATE IT FIRST. 4. IN SUPPORT OF THE OBJECTION THE LD. AR SUBMITTE D THAT VIDE LETTER DATED 18.11.2009 TO THE ASSESSING OFFICER, THE ASSESSEE HAD POINTED OUT THAT THE NOTICE ISSUED U/S 143(2) OF THE ACT HAS BEEN SERVED UPON THE ASSESSEE AFTER THE EXPIRY OF THE TIME PRESCRIBED UNDER PROVISO TO CLAUSE (II) OF SECTION 143(2) OF THE ACT. IT WAS POINTED OUT IN THAT LETTER THAT THE NOTICE HAS BEEN SERVED UPON THE ASSESSEE USING THE ADDRESS AS FG - 67 - C, VIKAS PURI, NEW DELHI WHICH WAS NOT THE CORRECT ADDRESS AND THE CORRECT ADDRESS OF THE ASSESSEE S COMPANY IS 152, 2 ND FLOOR, SARA I JULENA, NEW DELHI - 110092 FROM LAST SEVERAL YEARS WHICH IS ALSO PROVED FROM THE FACTS THAT (I) THE SAME ADDRESS IS AVAILABLE IN THE ITD DATA BASE ON THE WEBSITE OF THE DEPARTMENT, THE ASSESSEE HAS BEEN FILING ITS INCOME TAX RETURN MENTIONING THE SAME AD DRESS FROM THE ASSESSMENT YEAR 2006 - 07 TILL DATE AND FOR THE ASSESSMENT YEAR 2007 - 08 AND THE CORRESPONDENCES RELATING THERETO WERE ALSO MADE ON THE SAID ADDRESS OF THE ASSESSEE AT SARAI JULENA, AS MENTIONED ABOVE. HE ALSO REFERRED DIFFERENT RELEVANT DOCUM ENTS FILED IN THE PAPER BOOK BY THE ASSESSEE. 3 ITA NO. 2546/DEL/2011 5. A COPY OF THE ABOVE STATED LETTER DATED 18.11.2009 HAS BEEN MADE AVAILABLE AT PAGE NO. 63 AND 64 OF THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. A T PAGE NO. 65, 66 HAS BEEN PLACED THE COPY OF THE RETURN FILED FOR THE ASSESSMENT YEAR UNDER CONSIDERATION SHOWING THE ADDRESS AT SARAI JULENA. AT PAGE NO. 61 - 62 OF THE PAPER BOOK HAS BEEN MADE AVAILABLE THE COPY OF LETTER DATED 20.7.2010 ADDRESSED TO THE LD. CIT(A) REQUESTING THEREIN FOR PERMISSION TO RAISE ADDITIONAL GROUND THAT THE ASSESSMENT ORDER PASSED ON 29.12.2009 IS WRONG ON FACTS AND ERRONEOUS ON THE POINT OF LAW AS CONTRARY TO THE PROVISIONS OF LAW CONTAINED U/S 143(2) (II) PROVISO OF THE INCOME TAX ACT, 1961, HENCE, ILLEGAL AS BARRED BY TIME LIMITATION. AT PAGE NO. 53 - 60 OF THE PAPER BOOK HAS BEEN PLACED A COPY OF WRITTEN STATEMENTS FILED BY THE ASSESSEE BEFORE THE LD. CIT(A) RAISING ISSUE OF VALIDITY OF SERVICE OF NOTICE U/S 143(2) OF THE ACT ALSO MENTIONING THEREIN ABOUT THE OBJECTION RAISED BY THE ASSESSEE IN THIS REGARD BEFORE THE ASSESSING OFFICER ON 18.11.2009. THE LD. AR SUBMITTED THAT THE AO DID NOT PREFER TO ENTERTAIN THIS OBJECTION. THE LD. AR REFERRED PAGE NO. 41 OF THE PAPER BOOK WHI CH IS THE COPY OF ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2006 - 07 SHOWING THE ADDRESS OF THE ASSESSEE AT 152, 2 ND FLOOR, SARAI JULENA, NEW DELHI 110092. HE ALSO DREW OUR ATTENTION TO PAGE NO. 42 OF THE PAPER BOOK I.E. COPY OF THE NOTICE OF DEMAND U/S 15 6 OF THE IT ACT FOR THE ASSESSMENT YEAR 2006 - 07 ADDRESSED TO THE ASSESSEE AT 152, 2 ND FLOOR, SARAI JULENA, NEW DELHI. AT PAGE NO. 43 HAS BEEN PLACED A COPY OF ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2009 - 10 SHOWING THE SAME ADDRESS OF THE ASSESSEE AT SAR AI JULENA. AT PAGE NO. 44 HAS BEEN MADE AVAILABLE A COPY OF DEMAND NOTICE ISSUED U/S 156 OF THE ACT FOR THE ASSESSMENT YEAR 2009 - 10 TO THE ASSESSEE ON THE SAID ADDRESS AT SARAI JULENA. 4 ITA NO. 2546/DEL/2011 6. THE LD. AR ALSO POINTED OUT THAT ON 11.3.2014, THE REVENUE WAS DIRECTED BY THE TRIBUNAL TO FILE THE ASSESSMENT RECORD FIXING THE HEARING ON 25.8.2014 I.E. TODAY. HE POINTED OUT THAT EVEN ON 16.12.2013 SIMILAR DIRECTION WAS GIVEN TO THE REVENUE FIXING THE DATE 11.3.2014 FOR THE HEARING ON THE ISSUE. THE LD. AR SUBM ITTED THAT SERVICE OF NOTICE U/S 143(2) (II) OF THE ACT UPON THE ASSESSEE WITHIN THE PRESCRIBED TIME LIMIT UNDER PROVISO TO SECTION 143(2) IS CONDITION PRECEDENT AND MANDATORY FOR FRAMING ASSESSMENT U/S 143(3) OF THE ACT, IN ABSENCE OF WHICH THE ASSESSMEN T CANNOT BE HELD AS VALID IN LAW. IN SUPPORT HE PLACED RELIANCE BESIDES OTHER ON THE DECISION OF HON BLE JURISDICTIONAL DELHI HIGH COURT IN THE CASE OF NELON INDIA LTD. VS. ITO (2008) 216 CTR (DELHI) 142. 7. LD. DR ON THE OTHER HAND TRIED TO JUSTI FY THE ORDERS OF THE AUTHORITIES BELOW ON THE ISSUE AND SUBMITTED THAT THE FIRST NOTICE U/S 143(2) WAS ISSUED ON 17.9.2008 AT THE HEAD OFFICE OF THE ASSESSEE I.E. FG - 67 - C, VIKASPURI, NEW DELHI THROUGH SPEED POST DATED 19.9.2008. HE SUBMITTED THAT AS PER PA N DATA BASE, THE ABOVE SAID ADDRESS AT VIKASPURI STILL EXIST AS HEAD OFFICE OF THE ASSESSEE. IN SUPPORT, HE FURNISHED A COPY OF PAN DATA BASE. THE LD. DR SUBMITTED THAT THE ABOVE DECISION OF HON BLE DELHI HIGH COURT RELIED UPON BY THE LD. AR IS HAVING DIST INGUISHABLE FACTS, HENCE, IT IS NOT HELPFUL TO THE ASSESSEE. HE SUBMITTED FURTHER THAT SINCE THE NOTICE U/S 143(2) WAS SENT THROUGH SPEED POST DATED 19.9.2008 IT WAS PRESUMED THAT IT WAS SERVED UPON THE ASSESSEE , WELL WITHIN PRESCRIBED TIME LIMIT UNDER PR OVISO TO SECTION 143(2) OF THE ACT. THE LD. DR HAS ALSO REFERRED THE PROVISIONS LAID DOWN UNDER SECTION 292 BB OF THE ACT. 5 ITA NO. 2546/DEL/2011 8. HAVING GONE THROUGH THE ABOVE SUBMISSIONS AS WELL AS RELEVANT PROVISIONS LAID DOWN U/S 282 OF THE IT ACT AND CODE OF CIVIL PROCEDURE, 1908 AS AMENDED BY THE CODE OF CIVIL PROCEDURE (AMENDMENT) ACT, 2002 WITH EFFECT FROM 1.7.2002, WE FIND THAT AS PER SECTION 282 OF THE ACT ANY NOTICE UNDER THE INCOME TAX ACT HAS TO BE SERVED ON THE PERSON NAMED THEREIN EITHER BY POST OR AS IF IT WERE A SUMMONS ISSUED BY COURT UNDER THE CODE OF CIVIL PROCEDURE. SECTION 282 OF THE IT ACT AS EFFECTIVE ON THE DATE OF ISSUE OF NOTICE AS ON 17.9.2009 DEALS WITH THE SERVICE OF NOTICE IN GENERAL. FOR A READY REFERENCE THE PROVISIONS LAID DOWN THEREIN A RE BEING REPRODUCED HEREIN : - 282. SERVICE OF NOTICE GENERALLY. (1) A NOTICE OR REQUISITION 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). (2) ANY SUCH NOTICE OR REQUISITION MAY BE ADDRESSED (A) IN THE CASE OF A FIRM OR A HINDU UNDIVIDED FAMILY, TO ANY MEMBER OF THE FIRM OR TO THE MANAGER OR ANY ADULT MEMBER OF THE FAMILY; (B) IN THE CASE OF A LOCAL AUTHORITY OR COMPANY, TO THE PRINCIPAL OFFICER THEREOF; (C) IN THE CASE OF ANY OTHER ASSOCIATION OR BODY OF INDIVIDUALS, TO THE PRINCIPAL OFFICER OR ANY MEMBER THEREOF; (D) IN THE CASE OF ANY OTHER PERSON (NOT BEING AN INDIVIDUAL), TO THE PERSON WHO MANAGES OR CONTROLS HIS AFFAIRS. THE SAID PROVISIONS HAVE BEEN AMENDED W.E.F 1.10.2009 AS UNDER : - SECTION 282. (1) THE SERVICE OF A NOTICE OR SUMMON OR REQUISITION OR ORDER OR ANY OTHER COMMUNICATION UNDER THIS ACT (HEREAFTER IN THIS SECTION REFER RED TO AS COMMUNICATION ) MAY BE MADE BY DELIVERING OR TRANSMITTING A COPY THEREOF, TO THE PERSON THEREIN NAMED, -- (A) BY POST OR BY SUCH COURIER SERVICES AS MAY BE APPROVED BY THE BOARD, OR (B) IN SUCH MANNER AS PROVIDED UNDER THE CODE OF CIVIL PROCEDUR E, 1908 (5 OF 1908) FOR THE PURPOSES OF SERVICE OF SUMMONS; OR 6 ITA NO. 2546/DEL/2011 (C) IN THE FORM OF ANY ELECTRONIC RECORD AS PROVIDED IN CHAPTER IV OF THE INFORMATION TECHNOLOGY ACT, 2000 (21 OF 2000); OR (D) BY ANY OTHER MEANS OF TRANSMISSION OF DOCUMENTS AS PROVIDED BY RULES MADE BY THE BOARD IN THIS BEHALF. (2) THE BOARD MAY MAKE RULES PROVIDING FOR THE ADDRESSES (INCLUDING THE ADDRESS FOR ELECTRONIC MAIL OR ELECTRONIC MAIL MESSAGE) TO WHICH THE COMMUNICATION REFERRED TO IN SUB - SECTION (1) MAY BE DELIVERED OR TRANSMIT TED TO THE PERSON THEREIN NAMED. EXPLANATION FOR THE PURPOSES OF THIS SECTION, THE EXPRESSIONS ELECTRONIC MAIL AND ELECTRONIC MAIL MESSAGE SHALL HAVE THE MEANINGS AS ASSIGNED TO THEM IN EXPLANATION TO SECTION 66A OF THE INFORMATION TECHNOLOGY ACT, 2 000 (21 OF 2000). 9. NOTHING HAS HOWEVER BEEN BROUGHT TO OUR NOTICE BY THE DEPARTMENT THAT THE BOARD EVEN AS PER SUB SECTION (2) HEREINABOVE HAS MADE ANY RULES PROVIDING FOR THE ADDRESSES TO WHICH THE COMMUNICATION REFERRED TO IN SUB - SECTION (1) M AY BE DELIVERED OR TRANSMITTED TO THE PERSON THEREIN NAMED. HOWEVER, THERE IS NO DISPUTE THAT ANY NOTICE UNDER THE INCOME TAX ACT HAS TO BE SERVED ON THE PERSON NAMED THEREIN EITHER BY POST OR AS IF IT WERE A SUMMONS ISSUED BY THE COURT UNDER THE CODE OF CIVIL PROCEDURE. 10. BEFORE THE AMENDMENT IN THE CODE OF CIVIL PROCEDURE, 1908 FROM 1.7.2002, THERE WAS A PROCEDURE OF SERVICE PROVIDED UNDER RULE 19A ORDER V. AS PER TH IS PROCEDURE LAID DOWN THEREIN THERE WAS A PROVISION OF DEEMING SERVICE IN A CASE WHERE SUMMONS WERE SENT BY REGISTERED POST WITH ACKNOWLEDGEMENT DUE ON THE CORRECT ADDRESS OF THE ADDRESSEE AND DID NOT RETURN UNSERVED WITHIN 30 DAYS FROM THE DATE WHEN IT WA S POSTED OR THERE WAS NO ANY RETURN OF ACKNOWLEDGEMENT DUE. IT WAS DEEMED THAT THE SUMMONS 7 ITA NO. 2546/DEL/2011 HAVE BEEN DULY SERVED UPON THE ADDRESSEE. FOR A READY REFERENCES THE SAID RULE 19A IS BEING REPRODUCED HEREUNDER : [ 19A. SIMULTANEOUS ISSUE OF SUMMONS FOR SERVIC E BY POST IN ADDITION TO PERSONAL SERVICE. (1) THE COURT SHALL, IN ADDITION TO, AND SIMULTANEOUSLY WITH, THE ISSUE OF SUMMONS FOR SERVICE IN THE MANNER PROVIDED IN RULES 9 TO 19 (BOTH INCLUSIVE), ALSO DIRECT THE SUMMONS TO BE SERVED BY REGISTERED POST, ACK NOWLEDGMENT DUE, ADDRESSED TO THE DEFENDANT, OR HIS AGENT EMPOWERED TO ACCEPT THE SERVICE, AT THE PLACE WHERE THE DEFENDANT, OR HIS AGENT, ACTUALLY AND VOLUNTARILY RESIDES OR CARRIES ON BUSINESS OR PERSONALLY WORKS FOR GAIN: PROVIDED THAT NOTHING IN THI S SUB - RULE SHALL REQUIRE THE COURT TO ISSUE A SUMMONS FOR SERVICE BY REGISTERED POST, WHERE, IN THE CIRCUMSTANCES OF THE CASE, THE COURT CONSIDERS IT UNNECESSARY. (2) WHEN AN ACKNOWLEDGMENT PURPORTING TO BE SIGNED BY THE DEFENDANT OR HIS AGENT IS RECEIVED BY THE COURT OR THE POSTAL ARTICLE CONTAINING THE SUMMONS IS RECEIVED BACK BY THE COURT WITH AN ENDORSEMENT PURPORTING TO HAVE BEEN MADE BY A POSTAL EMPLOYEE TO THE EFFECT THAT THE DEFENDANT OR HIS AGENT HAD REFUSED TO TAKE DELIVERY OF THE POSTAL ARTICLE CO NTAINING THE SUMMONS, WHEN TENDERED TO HIM, THE COURT ISSUING THE SUMMONS SHALL DECLARE THAT THE SUMMONS HAD BEEN DULY SERVED ON THE DEFENDANT: PROVIDED THAT WHERE THE SUMMONS WAS PROPERLY ADDRESSED, PREPAID AND DULY SENT BY REGISTERED POST, ACKNOWLEDGMEN T DUE, THE DECLARATION REFERRED TO IN THIS SUB - RULE SHALL BE MADE NOTWITHSTANDING THE FACT THAT THE ACKNOWLEDGMENT HAVING BEEN LOST OR MISLAID, OR FOR ANY OTHER REASON, HAS NOT BEEN RECEIVED BY THE COURT WITHIN THIRTY DAYS FROM THE DATE OF THE ISSUE OF THE SUMMONS.] 11. BUT AFTER THE AMENDMENT IN THE CODE OF CIVIL PROCEDURE WITH EFFECT FROM 1.7.2002 THE PROCEDURE LAID DOWN UNDER THE SAID RULE 19A HAS BEEN REPEALED. AS DISCUSSED ABOVE IN THAT RULE 19A IT WAS LAID DOWN THAT 8 ITA NO. 2546/DEL/2011 THE COURT ISSUING THE SUMMONS SHALL DECLARE THAT THE SUMMONS HAD BEEN DULY SERVED ON THE DEFENDANT PROVIDED THAT WHERE THE SUMMONS WAS PROPERLY ADDRESSED, PREPAID AND DULY SENT BY REGISTERED POST, ACKNOWLEDGEMENT DUE, THE DECLARATION REFERRED TO IN THIS SUB RULE SHALL BE MADE NOTWIT HSTANDING THE FACT THAT THE ACKNOWLEDGEMENT HAVING BEEN LOST OR MISLED OR FOR ANY OTHER REASON, HAS NOT BEEN RECEIVED BY THE COURT WITHIN 30 DAYS FROM THE DATE OF THE ISSUE OF THE SUMMONS. 12. IN THE PRESENT CASE EVEN IF WE CON CU R WITH THE LD. DR THAT THE NOTICE DATED 17.9.2008 U/S 143(2) SENT THROUGH SPEED POST ON 19.9.2008 WAS ON THE CORRECT ADDRESS AS SHOWN IN PAN AS HEAD OFFICE AT VIKASPURI, NEW DELHI, IT CANNOT BE SAFELY ARRIVED AT THE CONCLUSION THAT THE SAID NOTICE WAS SERVED UPON THE ASSESSEE WELL WITHIN THE PRESCRIBED TIME LIMIT AS PER PROVISO TO SECTION 143(2) (II) OF THE ACT SINCE AFTER REPEALING OF RULE 19A OF ORDER V OF CODE OF CIVIL PROCEDURE AND NOT IN OPERATION DURING THE PERI OD THE R E CANNOT BE A PRESUMPTION OF SERVICE TO AGREE WITH THE REVENUE IN THIS REGARD. THUS, WE ARE OF THE VIEW THAT IN ABSENCE OF MENTIONING OF A SPECIFIC ACTUAL DATE ON WHICH THE ASSESSEE WAS SERVED UPON WITH THE SAID NOTICE SENT ON 19.9.2008 IT CANNOT BE ARRIVED AT A CONCLUSION THAT THE NOTICE WAS SERVED WELL WITHIN THE PRESCRIBED TIME LIMIT. EVEN IN ITS REMAND REPORT SENT ON 13.12.2010 TO THE LD. CIT(A) , THE AO IS SILENT AS TO WHEN NOTICE ISSUED UNDER SECTION 143(2) DATED 17.9.2008 SENT THROUGH SPEE D POST ON 19.2.2008 WAS ACTUALLY SERVED UPON THE ASSESSEE. SINCE THE NOTICE WAS ISSUED ON 19.9.2008, THUS SUBSTITUTED PROVISO TO SECTION 143(2)(II) W.E.F. 01.04.2008 (FINANCE ACT, 2008) WILL BE APPLICABLE IN THIS CASE (CBDT CIRCULAR NO. 1 OF 2009 DATED 27 .3.2009 310 ITR (ST.)42). AS PER TH IS PROVISO TO SECTION 143(2) (II) OF THE ACT, NO SUCH NOTICE SHALL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF 6 9 ITA NO. 2546/DEL/2011 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN IS FURNISHED. THE RETURN IN THE PRESENT CASE WAS FIL ED ON 30.11.2007 WHICH WAS INITIALLY PROCESSED U/S 143(1) OF THE ACT. THEREAFTER THE CASE WAS SELECTED FOR SCRUTINY AND THE FIRST NOTICE U/S 143(2) OF THE ACT STATED TO BE DATED 17.9.2008 WAS CLAIMED TO BE ISSUED THROUGH SPEED POST ON 19.9.2008 WHICH WAS N EVER SERVED UPON THE ASSESSEE. NOTHING IS COMING FROM RECORD AS TO WHEN THIS NOTICE WAS SERVED UPON THE ASSESSEE. THE ANOTHER NOTICE ISSUED U/S 143(2) DATED 17.9.2010 WHICH WAS SERVED UPON THE ASSESSEE WAS ADMITTEDLY BEYOND THE PRESCRIBED TIME LIMIT P ROVID ED UNDER THE PROVISO TO SECTION 143(2) OF THE ACT. THE SERVICE OF A NOTICE U/S 143(2) DATED 17.9.2010 AS REPORTED BY THE AO, VIDE LETTER DATED 16.12.2010 TO THE LD. CIT(A) CANNOT BE STATED TO BE WITHIN THE PRESCRIBED TIME LIMIT. THERE IS NO DISPUTE THAT SE RVICE OF NOTICE ISSUED U/S 143(2) WITHIN THE PRESCRIBED TIME LIMIT IS MANDATORY AND CONDITION PRECEDENT TO PROCEED FOR FRAMING OF ASSESSMENT U/S 143(3) OF THE ACT. IN THIS REGARD WE ALSO FIND STRENGTH FROM THE FOLLOWING DECISION S . 13. ALMOST SIMILAR ARE THE FACTS BEFORE THE HON BLE DELHI HIGH COURT IN THE CASE OF NULON INDIA LTD. VS. ITO (SUPRA). IN THAT CASE ASSESSEE HAD FILED ITS RETURN OF INCOME ON 31.10.2001. THE AO ISSUED NOTICE DATED 29.10.2002 U/S 143(2) OF THE ACT AND S ENT THROUGH SPEED POST ON 30.10.2002. IT WAS ISSUED AT THE ADDRESS MENTIONED IN THE RETURN OF INCOME BEING NULON HOUSE, 10 MILE STONE, MATHORA ROAD, NEW DELHI. THE NOTICE WAS REDIRECTED AT A - 74, SECTOR - S, NOIDA AND IT WAS SERVED AT THE REDIRECTED ADDRESS O N 6.11.2002. THE AO AS WELL AS LD. CIT(A) HELD THAT THE NOTICE WAS ISSUED AT THE ADDRESS MENTIONED IN THE RETURN AND THE CHANGE IN ADDRESS WAS NOT NOTIFIED BY THE ASSESSEE AND THUS THERE IS VALID SERVICE OF NOTICE WITHIN THE TIME PRESCRIBED AND HENCE ASSES SMENT MADE PURSUANT TO THE SAID NOTICE IS 10 ITA NO. 2546/DEL/2011 ALSO VALID. THE TRIBUNAL HELD THAT NOTICE HAS BEEN SENT WITHIN THE PERIOD OF LIMITATION AND HENCE THE ASSESSMENT MADE PURSUANT TO THE SUCH NOTICE IS A VALID ASSESSMENT. BEFORE THE HON BLE HIGH COURT THE ASSESSEE CO NTENDED THAT THERE IS NO MATERIAL BEFORE THE AUTHORITIES IN SUPPORT OF SERVICE ON 31.10.2002 AND THE RE - DIRECTION COULD AT ALL BE DONE ON 3 RD NOVEMBER, 2002, THE OTHER DATE INDICATED BY THE POST OFFICE ON THE ENVELOPE, IN THAT CASE, THE SERVICE CANNOT BE TAKEN BEFORE 3 RD NOVEMBER, 2002 AND SINCE THE NOTICE WAS SERVED AFTER MANDATORY PERIOD, THE ASSESSMENT IN QUESTION CANNOT BE SUSTAINED. 14. THE EXPLANATION OF THE REVENUE REMAINED THAT THE NOTICE U/S 143(2) WAS ISSUED ON 29.10.2002 AND WAS SENT BY SPE ED POST ON 30.10.2002 AND WAS RECEIVED AT THE GIVEN ADDRESS OF THE ASSESSEE ON 31.10.2002. THEREAFTER AT THE INSTANCE OF THE AO IT WAS REDIRECTED AT THE ADDRESS OF NOIDA SO NOTICE IN QUESTION HAS BEEN SERVED UPON THE ASSESSEE WITHIN THE PRESCRIBED PERIOD. 15. CONSIDERING THE MATERIAL AVAILABLE ON RECORD THE HON BLE HIGH COURT WAS PLEASED TO OBSERVE THAT THE NOTICE IN QUESTION HAS BEEN DISPATCHED ON 30.10.2002 AND THEREAFTER IT HAS BEEN RE - DIRECTED TO THE NOIDA ADDRESS OF THE ASSESSEE. THERE IS NOTHING ON RECORD TO SHOW AS TO ON WHICH DATE THIS NOTICE WAS RECEIVED AT THE GIVEN ADDRESS OF THE ASSESSEE AND ON WHICH DATE THE SAME WAS RE - DIRECTED. IN HIS COMMENT IN RESPONSE TO THE DIRECTION OF LD. CIT(A) PLACED ON RECORD , THE AO VIDE ITS LETTER DATED 12/20 OCTOBER, 2004 HAD COMMENTED THAT THE NOTICE WAS SERVED BY SPEED POST WHICH MUST BE DELIVERED TO THE ASSESSEE WITHIN 24 HOURS, I.E., BY MORNING OF 31 ST OCTOBER. 11 ITA NO. 2546/DEL/2011 16. THE HON BLE HIGH COURT, THUS, OBSERVED THAT THE ASSESSING OFFICER IS ALSO NOT SURE N OR SPECIFIC AS TO WHEN THE NOTICE IN QUESTION HAS BEEN SERVED UPON THE ASSESSEE. IT IS ONLY A PRESUMPTION THAT NOTICE WHICH HAVE BEEN SENT BY SPEED POST ON 30 TH OCTOBER, 2002 MUST HAVE DELIVERED TO THE ASSESSEE BY 31 ST OCTOBER, 2002. THERE IS NO PRESUMPTIO N UNDER THE LAW THAT ANY NOTICE SENT BY SPEED POST MUST HAVE BEEN DELIVERED TO THE ASSESSEE WITHIN 24 HOURS. 17. MOREOVER, THERE IS NOTHING ON RECORD TO SHOW AS TO ON WHOSE INSTANCE THE NOTICE WAS RE - DIRECTED AND SENT AT THE ADDRESS OF NOIDA. THE HON BLE HIGH COURT ACCORDINGLY, COME TO THE CONCLUSION THAT NO NOTICE U/S 143(2) OF THE ACT WHICH IS MANDATORY REQUIREMENT OF LAW, HA S BEEN SERVED UPON THE ASSESSEE WITHIN PRESCRIBED TIME PERIOD. THE HON BLE HIGH COURT ACCORDINGLY ALLOWED THE APPEAL FILED BY T HE ASSESSEE WHILE SETTING ASIDE THE ORDER OF THE TRIBUNAL IMPUGNED BY THE ASSESSEE BEFORE IT. 18. WE HAVE OCCASION TO GO THROUGH SOME MORE DECISIONS OF THE HON BLE JURISDICTIONAL HIGH COURT. IN THE CASE OF CIT VS. VARDHAMAN ESTATES (P) LTD. 287 ITR 3 68 (DEL) IT WAS HELD THAT IN A CASE OF SERVICE OF NOTICE UNDER SEC. 143(2), THE DATE OF DISPATCH OF NOTICE IS NOT DEEMED DATE OF SERVICE AND THAT WHERE THERE WAS NO MATERIAL TO SUGGEST THAT THE NOTICE SENT BY SPEED POST WAS SERVED ON ANY EARLIER DATE THAN THAT CONTENDED BY THE ASSESSEE, THE TRIBUNAL HAD CORRECTLY HELD THAT THE ASSESSMENT WAS NOT VALID ON THE GROUND OF LIMITATION. AGAIN IN THE CASE OF CIT VS. LUNAR DIAMONDS LTD. 281 ITR 1, NOTICE U/S. 143(2) WAS STATED BY AFFIDAVIT NOT TO HAVE BEEN SERVED, I T WAS HELD THAT IT WAS THE BURDEN OF THE DEPARTMENT TO PROVE SERVICE OF NOTICE WITHIN TIME AND THAT IN ABSENCE OF SUCH PROOF, THE ASSESSMENT WAS NOT VALID. 12 ITA NO. 2546/DEL/2011 1 9 . BESIDES, THE PROVISIONS LAID DOWN U/S 292BB OF THE ACT REGARDING DEEMING OF VALIDITY OF A N OTICE IN CERTAIN CIRCUMSTANCES ARE NOT HELPFUL TO THE REVENUE AS THE PROVISO T HERETO EXTENDS SHELTER TO THE ASSESSEE IN THE PRESENT CASE WHO HAD RAISED OBJECTION ABOUT THE VALIDITY OF NOTICE ISSUED U/S 143(2) OF THE ACT TO THE AO BEFORE THE COMPLETION OF T HE ASSESSMENT IN QUESTION. 20 . RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE HON BLE JURISDICTIONAL DELHI HIGH COURT IN THE ABOVE CITED CASE S, WE COME TO THE CONCLUSION THAT IN THE PRESENT CASE WHEN THERE IS NOTHING AVAILABLE ON RECORD TO SUGG EST THAT NOTICE ISSUED U/S 143(2) OF THE ACT ON THE ADDRESS THAT IS FG - 67 - C, VIKASHPURI, NEW DELHI SENT THROUGH SPEED POST ON 19.9.2008 WAS ACTUALLY SERVED UPON THE ASSESSEE WITHIN THE TIME PRESCRIBED UNDER PROVISO TO SECTION 143(2) (II) OF THE ACT NOR IS THE R E ANY SCOPE OF PRESUMPTION OF SERVICE IN ABSENCE OF RULE 19A ORDER V OF CPC W E HOLD THAT NO NOTICE U/S 143(2) WAS SERVED UPON THE ASSESSEE WITHIN THE TIME LIMIT PRESCRIBED UNDER THE PROVISO TO SECTION 143(2) (II) OF THE ACT, HENCE TH E ASSESSMENT FRAMED IN FURTHERANCE TO THE SAID NOTICE IS NOT VALID IN THE EYES OF THE LAW. THE SAME IS THUS QUASHED AS SUCH. THE OBJECTION NO. 1 OF THE CROSS OBJECTION IS THUS ALLOWED. 21. IN VIEW OF THE ABOVE FINDING ON THE VALIDITY OF THE VERY ASS ESSMENT, THE GROUNDS RAISED BY THE REVENUE IN ITS APPEALS ON THE MERITS OF ADDITIONS/DISALLOWANCES DELETED BY THE LD. CIT(A) AND THE REMAINING OBJECTIONS RAISED BY THE ASSESSEE IN ITS CROSS OBJECTION QUESTIONING THE ADDI TION SUSTAINED BY THE LD. CIT(A) HAV E BECOME INFRUCTUOUS AND THE SAME ARE DISPOSED OFF ACCORDINGLY. 13 ITA NO. 2546/DEL/2011 22. CONSEQUENTLY APPEAL PREFERRED BY THE REVENUE IS DISMISSED AND THE CROSS OBJECTION OF THE ASSESSEE IS ALLOWED ON LEGAL ISSUE. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH SEPTEMBER , 2014. SD/ - SD/ - (PRAMOD KUMAR) (I.C.SUDHIR) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 30 TH SEPTEMBER , 2014 B.RUKHAIYAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. CIT (ITAT), NEW DELHI BY ORDER ASSTT. REGISTRAR, ITAT