ITO, Kota V. SHRI SAURABH CHARAN, Kota

ITA 1119/JPR/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7819 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 22-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Opportunity of being heard; Non compliance; Assessment record
• Section: 143(3); 142(1); 27; 144

Judgement Text

IN THE INCOMETAX APPELLATE TRIBUNAL JAIPUR BENCH: JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. MEENA) I.T.A. NO. 1119/JP/2011 ASSTT. YEAR- 2007-08 PAN NO. ABEPC 8531 B THE I.T.O. SHRI SARABH (SAURABH) CHARAN, WARD 1(2), KOTA. VRS. M/S ADVANCE CARE REMEDIES, 4-J 39, VIGYAN NAGAR, KOTA. (APPELLANT) (RESPONDENT) DEPARTMENT BY :- SHRI AJAY MALIK ADDL. C.I.T. WITH ASSESSMENT RECORDS ASSESSEE BY :- NONE DATE OF HEARING : 03/12/2014 DATE OF PRONOUNCEMENT : 05/12/2014 O R D E R PER: T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 28/10/2011 OF THE LEARNED C.I.T.(A), KOTA FOR THE A. Y. 2007-08. THE EFFECTIVE GROUNDS OF APPEAL ARE AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) IS NOT RIGHT IN :- (I) TREATING THE NOTICE ISSUED UNDER SECTION 143(2 ) BY THE ITO, WARD- 3(2), CHANDIGARH AB-INITIO VOID AND QUASHING THE ASSESSMENT ORDER. ITA 1119/JP/2011 ITO VS. SAURABH CHARAN 2 (II) QUASHING THE ASSESSMENT ORDER DESPITE THE FAC T THAT THE NOTICE UNDER SECTION 143(2) WAS VALIDLY AND TIMELY SERVED THROUGH AFFIXTURE ON 26/09/2008. (III) THE APPELLANT CRAVES LIBERTY TO RAISE ADDITI ONAL GROUND AND TO MODIFY/AMEND THE GROUND OF APPEAL AT THE TIME OF H EARING. 2. BOTH THE GROUNDS OF APPEAL ARE AGAINST CHALLENGI NG THE ORDER OF THE LEARNED CIT(A), BY WHICH THE LEARNED CIT(A) HAD AL LOWED THE ASSESSEES APPEAL ON THE BASIS OF SERVICE OF NOTICE . THE ASSESSING OFFICER OBSERVED THAT THE RETURN DECLARING THE INCOME OF RS . 58,910/- WAS FILED THOUGH E-FILING ON 31/10/2007 AFTER CLAIMING DEDUCT ION UNDER CHAPTER VI-A AMOUNTING TO RS. 13,74,675/- ON THE GROSS TOTA L INCOME OF RS. 14,33,584/-. THE CASE WAS SELECTED FOR SCRUTINY AS PE R CASS AND ACCORDINGLY NOTICE U/S 143(2 ) OF THE INCOME TAX AC T, 1961 (HEREINAFTER REFERRED AS THE ACT) WAS ISSUED ON 25/09/2008 BY THE I.T.O. WARD 3(2), CHANDIGARH FIXING THE CASE FOR HEARING ON 20/10/200 8 AT CHANDIGARH OFFICE. THE ABOVE NOTICE COULD NOT BE SERVED IN THE GIVEN ADDRESS, THUS AS PER ORDER UNDER THE CODE OF CIVIL PROCEDURE 1908 (5 OF 1908) DATED 26/09/2009, THE INCOME TAX INSPECTOR AND NOTICE SERV ER WAS AUTHORIZED TO AFFIX A COPY OF NOTICE U/S 143(2) AND NOTICE U/S 142(1) ON THE CONSPICUOUS PART OF THE PREMISES WHERE THE ASSESSEE WAS RESIDING OR LAST KNOWN ADDRESS. THE ABOVE SAID NOTICES WERE AFFIXE D IN FRONT OF THE ITA 1119/JP/2011 ITO VS. SAURABH CHARAN 3 PREMISES BEFORE THE TWO WITNESSES ON 26/09/2008. SUBS EQUENTLY, THE I.T.O. WARD 3(2), CHANDIGARH WAS NOTICED THAT THE ADD RESS OF THE ASSESSEE HAD BEEN CHANGED FROM CHANDIGARH TO KOTA. THUS, THE I.T.O. WARD 3(2), CHANDIGARH ISSUED ANOTHER NOTICE U/S 143 (2) AND 142(1) OF THE ACT ON 30/9/2009 FIXING THE CASE FOR HEARING ON 16/10/2008 SENT THROUGH REGISTERED POST TO THE ADDRESS OF KOTA I.E. M/S ADVANCE CARE REMEDIES, 4-J-39, VIGYAN NAGAR, KOTA. AS PER RECORD S, NEITHER THE REQUIRED DETAILS FILED BY THE ASSESSEE NOR FILED AN Y APPLICATION FOR ADJOURNMENT. AGAIN THE I.T.O. WARD 3(2), CHANDIGARH ISSUED A LETTER DATED 29/01/2009 TO THE ASSESSEE AT KOTA ADDRESS AN D FIXING THE CASE FOR HEARING ON 09/2/2009. THE ABOVE SAID LETTER WAS R ETURNED BACK TO THE I.T.O. WARD 3(2), CHANDIGARH BY THE POSTAL DEPAR TMENT WITH THE REMARK THAT BL IRS ESA BL UKE DKS DKSBZ UGHA BL IRS ESA BL UKE DKS DKSBZ UGHA BL IRS ESA BL UKE DKS DKSBZ UGHA BL IRS ESA BL UKE DKS DKSBZ UGHA . THEREAFTER, THE CASE HAS BEEN TRANSFERRED BY THE I.T.O. WARD 3(2), CHANDIGARH TO THE OFFICE OF I.T.O., WARD 1(2), KOTA AS JURISDICTION OVER THE CAS E VESTS WITH THIS OFFICE VIDE LETTER NO. ITO/W-3(2)/2008-09/3473 DATED 24/09/ 2009. 2.1 ON RECEIPT OF CASE RECORDS, I.T.O. WARD 1 (2), KO TA ISSUED NOTICE U/S 143(2) AND 142(1) DATED 08/10/2009 FIXING THE C ASE FOR HEARING ON 22/10/2009, WHICH WAS DULY SERVED ON 12/10/2009 THR OUGH NOTICE SERVER OF THIS OFFICE TO THE MOTHER OF THE ASSESSEE. ON TH E FIXED DATE, NONE ITA 1119/JP/2011 ITO VS. SAURABH CHARAN 4 ATTENDED NOR FILED ANY APPLICATION FOR ADJOURNMENT. SUBSEQUENTLY, A QUERY LETTER ISSUED VIDE HIS OFFICE LETTER DATED 3/ 11/2009 REQUIRING TO FILE CERTAIN DETAILS AND PRODUCED THE BOOKS OF ACCOUNT T O THIS OFFICE ON 11/11/2009 ALONGWITH NOTICE U/S 142(1) OF THE ACT, W HICH WAS DULY SERVED THROUGH THE NOTICE SERVER OF THIS OFFICE. IN RESPONSE TO ABOVE SAID NOTICE, THE ASSESSEE FILED A LETTER TO THIS OFFICE ON 11/11/2009 STATED AND RAISED THE OBJECTION REGARDING VALIDITY OF THE SAID NOTICE AND CLAIM THAT NOTICE U/S 143(2) IS BAD AND VOID IN THE EYES OF LA W. FURTHER STATED THAT THERE THE ASSESSEE RECEIVED THE NOTICE U/S 143(2) O F THE ACT ON 09/10/2008, WHICH WAS DATED 30/09/2008 AND NOTICE WAS DELIVERED THROUGH REGISTERED POST. THE NOTICE WAS SERVED ON THE ASSESSEE AFTER EXPIRY OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR, IN WHICH THE RETURN WAS FURNISHED I.E. AFTER 30/09/2008. THE LEARN ED ASSESSING OFFICER OBSERVED THAT THE NOTICE ISSUED U/S 143(2) BY THE I .T.O. WARD 3(2), CHANDIGARH ON 25/9/2009 BUT THE SAME COULD NOT BE S ERVED. THUS, ANOTHER NOTICE DATED 26/09/2008 AFFIXED BY THE INSP ECTOR ON 26/09/2008 AT CHANDIGARH ADDRESS. THEREAFTER, NOTICE DATED 30/0 9/2009 SENT BY REGISTERED POST, WHICH WAS SERVED ON THE ASSESSEE ON 09/10/2008 WAS IN TIME. THUS, NOTICE AFFIXED ON 26/09/2009 AT CHAND IGARH ADDRESS AND LATER ON SENT BY THE REGISTERED POST ON 30/09/2009 TO THE KOTA ADDRESS ITA 1119/JP/2011 ITO VS. SAURABH CHARAN 5 BY THE I.T.O. WARD 3(2), CHANDIGARH WAS A VALID SERVI CE AND WAS IN TIME. ACCORDINGLY, THE LEARNED ASSESSING OFFICER REJECTED THE ASSESSEES CLAIM THAT NOTICE U/S 143(2) OF THE ACT WAS NOT ISSUED WITH IN THE TIME PRESCRIBED UNDER THE LAW. THEREAFTER, VARIOUS NOTICES ISSUED TO THE ASSESSEE, REQUIRED DETAILS NOT FURNISHED EVEN HIS M OTHER ALSO APPEARED BEFORE THE ASSESSING OFFICER, KOTA. THEREFORE, THE L EARNED ASSESSING OFFICER DECIDED TO COMPLETE THE ASSESSMENT PROCEEDI NGS U/S 144 OF THE ACT. HE ALSO ISSUED PENALTY NOTICE U/S 271(1)(B) OF THE ACT FOR NON COMPLIANCE OF THE NOTICES. THIS SHOW CAUSE NOTICE COU LD NOT BE SERVED AS THE ASSESSEE WAS NOT THERE AND THE FAMILY MEMBERS REFUSED TO ACCEPT THE LETTER AS PER NOTING OF THE NOTICE SERVER. A CO PY OF THE ABOVE LETTER WAS SENT BY REGISTERED POST, WHICH WAS ALSO UNSERVED B Y THE POSTAL DEPARTMENT AND RETURNED BACK WITH THE REMARK THAT IZKIR DJUS OKYK UGHA IZKIR DJUS OKYK UGHA IZKIR DJUS OKYK UGHA IZKIR DJUS OKYK UGHA GSA GSAGSA GSA . AGAIN SHOW CAUSE NOTICE U/S 142(1) ISSUED BY THE OFFICE LETTER DATED 08/12/2009 FIXING THE CASE FOR HEARING ON 12/ 12/2009, WHICH WAS AFFIXED BY THE INSPECTOR AND NOTICE SERVER OF THIS OFFICE AS PER ORDER UNDER THE CODE OF CIVIL PROCEDURE 1908 DATED 08/12/ 2009. ON THE FIXED DATE, NONE ATTENDED NOR FILED REQUIRED DETAILS. AGA IN ANOTHER OPPORTUNITY WAS GRANTED VIDE HIS OFFICE LETTER DATED 14/12/2009 REQUESTING TO SHOW CAUSE AS TO WHY THE ASSESSMENT MIGHT NOT BE COMPLETE D AS EX PARTE U/S ITA 1119/JP/2011 ITO VS. SAURABH CHARAN 6 144 OF THE ACT WITH THE AVAILABLE MATERIAL ON RECORD AND WHY PENALTY PROCEEDING SHOULD NOT BE INITIATED AND SHOW CAUSE NO TICE FOR IMPOSING PENALTY U/S 271(1)(B) OF THE ACT WAS GIVEN. EVEN A FTER VARIOUS OPPORTUNITIES PROVIDED BY THE ASSESSING OFFICER, TH E ASSESSEE WAS INTENTIONALLY AVOIDING COMPLIANCE OF NOTICES ISSUED BY THE ASSESSING OFFICER. ACCORDINGLY, ORDER PASSED U/S 144 OF THE A CT AND TRADING ADDITION OF RS. 2,11,856/- AND UNEXPLAINED CREDITOR S OF RS. 41,48,688/- WERE MADE BY THE ASSESSING OFFICER. 3. BEING AGGRIEVED BY THE ORDER OF THE LEARNED ASSE SSING OFFICER, THE ASSESSEE CARRIED THE MATTER TO THE LEARNED CIT(A). T HE ASSESSEE FILED AN AFFIDAVIT VIDE LETTER DATED 30/09/2011 AND SUBMITTE D AS UNDER:- 1. THAT I AM REGULAR ASSESSEE OF INCOME TAX SINCE 2 001-02 AND FILING MY INCOME TAX RETURN IN WARD 1(2), KOTA. M Y PAN IS ABEPC8531 B. 2. THAT DURING THE APPEAL PROCEEDING BEFORE CIT(APPEA LS), KOTA, I CAME TO KNOW, THAT A INCOME TAX RETURN HAS B EEN FILED IN MY NAME AT CHANDIGARH INCOME TAX OFFICE SHO WING ADDRESS AT HOUSE NO. 1087, TOP FLOOR, SECTOR 21-B, CHANDIGARH. 3. THAT I NEVER FILED ANY RETURN IN CHANDIGARH OR AN YWHERE EXCEPT IN ITO, WARD 1(2), KOTA WHERE I AM REGULAR ASSESSEE. ITA 1119/JP/2011 ITO VS. SAURABH CHARAN 7 4. THAT I NEVER RESIDE IN CHANDIGARH AND THERE IS NO CONNECTION WITH ME OF CHANDIGARH. 5. THAT I NEVER RESIDE IN THE HOUSE AS ADDRESS GIVEN IN THE RETURN FILED AT CHANDIGARH AND THERE IS NO CONNECTI ON WITH ME OF THIS HOUSE, MY PERMANENT RESIDENT IS 4-J-39, VIGYAN NAGAR, KOTA. THE LEARNED CIT(A) VERIFIED THE CONTENTION OF THE ASS ESSEE FROM THE ASSESSMENT RECORD OF A.Y. 2006-07, IT WAS FOUND THAT FOR A.Y. 2006-07, THE ASSESSEE SUBMITTED HIS RETURN ON 31/10/2006 WITH ITO WARD 1(2), KOTA DECLARING INCOME OF RS. 14,87,040/- CLAIMED DE DUCTION OF RS. 12,52,618/- UNDER CHAPTER VIA. THE CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT O N 29/12/2008. THUS, IT HAS BEEN HELD THAT WHEN NOTICE U/S 143(2) OF THE ACT WAS ISSUED BY THE I.T.O. WARD 3(2), CHANDIGARH AND PROCEEDING U /S 143(2) OF THE ACT WERE GOING ON BEFORE THE ITO WARD 1(2), KOTA AND THE LEARNED CIT(A) CONCLUDED THAT JURISDICTION TO ASSESS THE ASS ESSEE LIES WITH ITO, WARD 1(2), KOTA AND THE NOTICE ISSUED AT CHANDIGARH ADDRESS WERE NOT CORRECTLY ISSUED. APPARENTLY, THE RETURN FILED AT C HANDIGARH APPEARS TO HAVE BEEN FILED BY SOMEONE ELSE. THE ITO WAS ADVISED T O TAKE SUITABLE CORRECTIVE ACTION TO BOOK THE GUILTY. FURTHER HE HE LD THAT RETURN FILED FOR A.Y. 2007-08, WHICH WAS PICKED UP FOR SCRUTINY WAS FIL ED THROUGH E-FILING ITA 1119/JP/2011 ITO VS. SAURABH CHARAN 8 AND THE ADDRESS GIVEN THEREIN WAS OF KOTA. IT HAS BE EN HELD THAT FIRST NOTICE ISSUED AND SERVED ON THE ASSESSEE WAS NOTICE DATED 30 TH SEPTEMBER, 2008, WHICH WAS SERVED ON THE ASSESSEE ON 09/10/2008 AND SAME WAS BARRED BY LIMITATION. ACCORDINGLY, HE DECLA RED THE ORDER OF THE ASSESSING OFFICER AB-INITIO VOID AND QUASHED. 4. NOW THE REVENUE IS IN APPEAL BEFORE US. 5. THE LEARNED D.R. CONTENDED THAT GIVEN ADDRESS ON E-FILING RETURN WAS WITH THE I.T.O. WARD 3(2), CHANDIGARH, WHO HAD ISSU ED FIRST NOTICE ON 25/09/2008, WHICH COULD NOT BE SERVED, THEREFORE, HE AGAIN ISSUED NOTICE ON 26/09/2008, WHICH WAS SERVED BY AFFIXTURE U NDER THE CODE OF CIVIL PROCEDURE ON 26/09/2008 THROUGH WARD INSPECTO R AND NOTICE SERVER BEFORE TWO WITNESSES. THEREAFTER, HE ALSO SENT A NOTIC E ON 30/09/2008 THROUGH REGISTERED POST TO THE ADDRESS OF KOTA ADDR ESS I.E. ADVANCE CARE REMEDIES, 4-J-39, VIGYAN NAGAR, KOTA. THE SUBSEQUEN T NOTICES WERE ALSO SENT ON GIVEN ADDRESS OF KOTA ADDRESS BUT LETT ERS WERE RETURNED BACK BY THE I.T.O. WARD 3(2), CHANDIGARH WITH REMARK THAT BL IRS ESA BL IRS ESA BL IRS ESA BL IRS ESA BL UKE DK D BL UKE DK D BL UKE DK D BL UKE DK DKSBZ UGHA KSBZ UGHA KSBZ UGHA KSBZ UGHA . AT ONE POINT OF TIME, THE ASSESSEE WAS CLAIMING THAT HE HAS FILED RETURN WITH THE ADDRESS OF KOTA FO R A.Y. 2007-08 ON WHICH THE NOTICES WERE SENT BY THE I.T.O. WARD 3(2), CHANDIGARH, HAD NOT BEEN RECEIVED BY THE ASSESSEE AND POSTAL AUTHOR ITY CERTIFIED THAT ITA 1119/JP/2011 ITO VS. SAURABH CHARAN 9 BL IRS ESA BL UKE DK D BL IRS ESA BL UKE DK D BL IRS ESA BL UKE DK D BL IRS ESA BL UKE DK DKSBZ UGHA KSBZ UGHA KSBZ UGHA KSBZ UGHA , IT APPEARS THAT THE ASSESSEE WAS INTENTIONALLY AVOIDING THE INCOME TAX PROCEEDING. TH E ARGUMENT TAKEN BEFORE THE LEARNED CIT(A) THAT SOMEBODY HAS FILED RE TURN IN THE NAME OF THE ASSESSEE, CANNOT BE ACCEPTED AS THE ASSESSEE HA S NOT FILED ANY EVIDENCE WHETHER HE HAS LODGED ANY FIR FOR THIS COND UCT. HE SIMPLY FILED AN AFFIDAVIT BEFORE THE LEARNED CIT(A) AND CL AIMING THAT HE RECEIVED NOTICE ON 30/09/2008. HE FURTHER ARGUED THAT BY THE FINANCE ACT, 2008 W.E.F. 01/4/2008, THE AMENDMENT WAS MADE IN THE PROVI SIONS OF SECTION 143(2)(II) OF THE ACT THAT NO NOTICE UNDER CLAUSE ( II) SHALL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF SIX MONTHS FROM TH E END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED. THE ASSESSEE F ILED RETURN ON 31/10/2007 AND NOTICE AS PER THIS AMENDMENT IS TO B E ISSUED AS PER AMENDED PROVISION ON OR BEFORE 30/09/2008, BUT EARL IER, THE POSITION WAS THAT NO NOTICE UNDER CLAUSE (II) SHALL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF 12 MONTHS FROM THE END OF THE M ONTH, IN WHICH THE RETURN IS FURNISHED. THE HONBLE PUNJAB & HARYANA HI GH COURT IN THE CASE OF V.R.A. COTTON MILLS P. LTD. VS. UNION OF IN DIA AND OTHERS (2013) 359 ITR 495 (P&H) HAS HELD THAT THE DATE OF RECEIPT OF THE NOTICE BY THE ADDRESSEE IS NOT RELEVANT TO DETERMINE, AS TO WHETHE R THE NOTICE HAS BEEN ISSUED WITHIN THE PRESCRIBED PERIOD OF LIMITATI ON. THE EXPRESSION ITA 1119/JP/2011 ITO VS. SAURABH CHARAN 10 SERVE MEANS THE DATE OF ISSUE OF NOTICE. THE DATE OF RECEIPT OF NOTICE CANNOT BE LEFT TO BE UNDERMINED DEPENDENT UPON THE WILL OF THE ADDRESSEE. THEREFORE, TO BRING CERTAINLY AND TO AVOI D ATTEMPTS OF THE ADDRESSEE TO EVADE THE PROCESS OF RECEIPT OF NOTICE , THE PURPOSE OF THE STATUTE WILL BE BETTER SERVED, IF THE DATE OF ISSUE OF NOTICE IS CONSIDERED AS COMPLIANCE WITH THE REQUIREMENT OF THE PROVISO TO SECTION 143(2) OF THE ACT. IN FACT THAT IS THE ONLY CONCLUSION THAT C AN BE ARRIVED AT TO THE EXPRESSION SERVE APPEARING IN SECTION 143(2) OF T HE ACT. ACCORDINGLY, THE ASSESSEES PETITION WAS DISMISSED. FURTHER IT IS ARGUED THAT THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF AMARJIT SINGH TUT VS. UNION OF INDIA 347 ITR 585 HAS HELD THAT THE AM ENDMENT MADE IN SECTION 143(2)(II) OF THE ACT IS PROCEDURAL AND FOR A.Y. 2007-08, THE NOTICE ISSUED WITHIN 12 MONTHS FROM THE DATE OF RETU RN IS VALID NOTICE FOR A.Y. 2007-08. THEREFORE, HE PRAYED TO SET ASIDE THE ORDER OF THE LEARNED CIT(A). 6. AT THE OUTSET, NO ONE APPEARED ON BEHALF OF THE ASSESSEE, THEREFORE, WE HAVE CONSIDERED ALL THE SUBMISSIONS MADE BEFORE T HE LOWER AUTHORITIES BY THE ASSESSEE. ITA 1119/JP/2011 ITO VS. SAURABH CHARAN 11 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. BY AF FIXTURE NOTICE WAS SERVED ON THE GIVEN ADDRESS OF THE ASSESSEE ON 26/0 9/2008. EVEN THE ASSESSEE HIMSELF ADMITTED THAT HE HAD RECEIVED NOTI CE DATED 30/09/2008 ON 09/10/2008, WHICH IS WITHIN 12 MONTHS FROM THE DAT E OF RETURN FILED I.E. 31/10/2007. THE HONBLE PUNJAB & HARYANA HIGH C OURT IN THE CASE OF AMARJIT SINGH TUT (SUPRA) HAS HELD THAT STATUTE OF LIMITATION IS A PROCEDURAL STATUTE AND IS APPLICABLE TO PENDING PRO CEEDINGS. OBJECTION TO THE TERRITORIAL JURISDICTION HAS TO BE RAISED AT TH E EARLIEST AND IT OTHERWISE DEEMED TO HAVE BEEN WAIVED. THE HONBLE COURT FURTHER HELD THAT FOR A.Y. 2007-08 EVEN NOTICE ISSUED AND SERVED WITHIN ON E YEAR FROM THE END OF THE DATE OF RETURN IS VALID NOTICE U/S 143(2 )(II) OF THE ACT. IN ANOTHER CASE, THE HONBLE PUNJAB & HARYANA HIGH COU RT IN THE CASE OF CIT VS. JASBIR SINGH NRI THROUGH SHRI JARNAIL SINGH, POA IN ITA NO. 253 OF 2012 (O&M) ORDER DATED 21/2/2012 HAS HELD THAT N OTICE ISSUE ON THE LAST KNOWN ADDRESS IS VALID SERVICE. IT IS FURTHER HELD THAT IT WAS INCUMBENT ON THE TRIBUNAL NOT TO QUASH THE WHOLE PRO CEEDINGS AS IT AMOUNTED TO LEAVING THE ASSESSEE GO SCOT FREE, THOU GH HE IS LIABLE TO PAY TAX ON THE CAPITAL GAINS. THE ASSESSEE RECEIVED COMP ENSATION ON COMPULSORY ACQUISITION OF LAND, THEREFORE, HE CANNO T DENY HIS LIABILITY TO ITA 1119/JP/2011 ITO VS. SAURABH CHARAN 12 PAY LONG TERM CAPITAL GAIN TAX. MERELY BECAUSE THER E WAS SOME ERROR IN SERVICE OF NOTICES ON THE ASSESSEE, STATUTORY LIABI LITY OF THE ASSESSEE TO PAY TAX ON CAPITAL GAIN WAS NOT OVER. BECAUSE OF PRO CEDURAL LAPSE, THE ASSESSEE SHOULD NOT BE A GAINER AND THAT TOO BY DEF AULT TO ESCAPE HIS LIABILITY. SQUALLY, ORDER OF THE TRIBUNAL ALSO LACK S MERIT. THE CASE LAW CITED BY THE LEARNED DR I.E. V.R.A. COTTON MILLS P . LTD. VS. UNION OF INDIA (SUPRA) IS SQUARELY APPLICATION ON THE ASSESSEES C ASE WHEREIN IT HAS BEEN HELD THAT PRESCRIBED TIME LIMIT FOR NOTICE, TH E EXPRESSION SERVE AND ISSUE ARE INTERCHANGEABLE, AS HAS BEEN NOTICE D IN SECTION 27 OF THE GENERAL CLAUSES ACT, 1897 AND ALSO IN A JUDGMEN T OF THE HON'BLE SUPREME COURT IN THE CASE OF BANARSI DEVI VS. ITO ( 1964) 53 ITR 100 (SC), THEREFORE, THE MOMENT, NOTICE IS SIGNED AND P UT IN THE COURSE OF TRANSMISSION BY THE DEPARTMENT, THE NOTICE IS DUE T O BE SERVED. IT HAS BEEN HELD THAT NOTICE, WHICH WAS SERVED BY THE AFFIXT URE ON THE LAST DAY OF LIMITATION IS VALID. THE APPELLANT HAD NOT FILED ANY FIR AGAINST THE CLAIM THAT SOMEBODY HAD FILED HIS RETURN AS CLAIMED BEFORE THE LEARNED CIT(A), THEREFORE, WE SET ASIDE THE ORDER OF THE LEA RNED CIT(A) AND DIRECTED TO FRAME THE ORDER AS PER LAW AFTER PROVIDI NG REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES. ITA 1119/JP/2011 ITO VS. SAURABH CHARAN 13 8. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 05/12/2014. SD/- SD/- (R.P. TOLANI) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR, DATED : 05 TH DECEMBER, 2014 * RANJAN COPY FORWARDED TO :- 1. THE ITO, WARD 1(2), KOTA. 2. SHRI SARABH (SAURABH) CHARAN, KOTA. 3. THE CIT (A) 4. THE CIT 5. THE D/R GUARD FILE (I.T.A. NO. 1119/JP/2011) BY ORDER, AR ITAT JAIPUR.