Sh. Gurparshotam Singh, Jalandhar V. Income tax Officer, Jalandhar

ITA 132/ASR/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9566 (ITAT-AMRITSAR)
• Duration Of Justice: 4 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-06-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 30-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHAWANI SHANKER
• Keywords: Period of limitation; Procedural lapse; Block assessment
• Section: 143(3); 142(1); 27; 144; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. (CAMP AT JALANDHAR) BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO.132(ASR)/2012 ASSESSMENT YEAR:2008-09 PAN: BPNPS1685G SH. GURPARSHOTAM SINGH VS. INCOME TAX OFFICER, VIL. BAJRA, P.O. SAMIRPUR, WARD IV(2), JALANDHAR. JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. SANDEEP VIJH, CA RESPONDENT BY: SH. BHAWANI SHANKER, DR DATE OF HEARING: 28/06/2016 DATE OF PRONOUNCEMENT: 15/09/2016 ORDER PER T.S. KAPOOR, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LD. CIT(A), JALANDHAR, DATED 19.03.2011, RELATING TO AS SESSMENT YEAR 2008- 09. 2. THE ASSESSEE HAS TAKEN FIVE GROUNDS OF APPEAL. G ROUND NO. 1 OF THE APPEAL RELATES TO THE GRIEVANCE OF THE ASSESSEE WIT H RESPECT TO SERVICE OF NOTICE UNDER SECTION 143(2) OF THE INCOME TAX ACT ( IN SHORT, THE ACT), 1961. ITA NO.132(ASR)/2012 ASSESSMENT YEAR: 2008-09 2 3. THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, SUBMITTED THAT NOTICE UNDER SECTION 143(2) OF THE ACT, WAS NOT PRO PERLY SERVED UPON THE ASSESSEE, AS THE ASSESSEE WAS ABROAD AT THE TIME OF ALLEGED SERVICE OF NOTICE. THE LD. COUNSEL SUBMITTED THAT ADMITTEDLY T HE NOTICE WAS NOT SERVED UPON THE ASSESSEE, WHICH IS APPARENT FROM TH E FINDINGS OF THE LD. CIT(A), WHEREIN HE HAS REFERRED THAT SINCE THE ENVE LOP CONTAINING NOTICE WAS RETURNED BACK WITH THE REMARKS BY THE POSTAL AU THORITIES ADDRESSEE LEFT INDIA. IT WAS SUBMITTED THAT LD. CIT(A) HAS HELD THAT SINCE THE ASSESSEE WAS ISSUED NOTICE UNDER SECTION 143(2) OF THE ACT, BY REGISTERED POST AND THEREFORE, IT WAS A DEEMED SERVICE OF NOTI CE. WHILE HOLDING SUCH FINDING, THE LD. CIT(A) HAS RELIED UPON A NUMBER OF JUDGMENTS. THE LD. COUNSEL FURTHER SUBMITTED THAT THE JUDGMENTS RELIED UPON BY THE LD. CIT(A) ARE NOT APPLICABLE TO THE FACTS AND CIRCUMST ANCES OF THE PRESENT CASE, AS ADMITTEDLY THE NOTICE WAS NOT ISSUED BY R EGISTERED POST, AS IT WAS SENT THROUGH SPEED POST AND IN THIS RESPECT OUR ATTENTION WAS INVITED TO PARA-1 OF THE ASSESSMENT ORDER. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE HONBLE SUPREME COURT I N THE CASE OF ACIT VS. HOTEL BLUE MOON, REPORTED IN 321 ITR (ST.) 1, H AS CLEARLY HELD THAT THE ASSESSMENT COMPLETED WITHOUT SERVICE OF NOTICE U/S 143(2) OF THE ACT, WAS NOT A VALID ASSESSMENT. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE ASSESSEE HAD LEFT INDIA ON 13/07 /2009 AND HAD RETURNED ON 23.10.2009 AND THE ASSESSEE HAD NOT AUT HORIZED ANYBODY TO RECEIVE NOTICE ON HIS BEHALF. THE LD. COUNSEL FOR T HE ASSESSEE, IN THIS ITA NO.132(ASR)/2012 ASSESSMENT YEAR: 2008-09 3 RESPECT INVITED OUR ATTENTION TO PAPER BOOK PAGES 1 2 & 13 WHERE A COPY OF PASS-PORT OF THE ASSESSEE WAS PLACED. IN VIEW O F THESE SUBMISSIONS, IT WAS SUBMITTED THAT THE ORDER PASSED BY THE AO UNDER SECTION 144 OF THE ACT, NEEDS TO BE QUASHED. 4. THE LD. DR, ON THE OTHER HAND, HEAVILY PLACED RE LIANCE ON THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE GON E THROUGH THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE AO I N HIS ORDER AT PARA-1 HAS MENTIONED THAT NOTICE U/S 143(2) OF THE ACT WAS ISSUED ON 18.09.2009 AND WAS SENT BY SPEED POST, FIXING THE C ASE OF THE ASSESSEE FOR HEARING. FOR THE SAKE OF CONVENIENCE, PARA-1 O F THE AOS ORDER IS REPRODUCED HEREUNDER: RETURN DECLARING NET INCOME OF RS.1,23,222/- AND A GRICULTURE INCOME OF RS.3,50,000/- WAS FILED BY THE ASSESSEE O N 18.03.2009. THE RETURN WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961 ON 24/02/2010 WHICH WAS SENT THROUGH SPEED POST ON 9.3 .2010. SUBSEQUENTLY THE CASE WAS SELECTED FOR SCRUTINY UND ER CASS AND NOTICE U/S 143(2) OF THE ACT, WAS ISSUED ON 18/09/2 009 SENT BY SPEED POST FIXING THE CASE OF THE ASSESSEE FOR HE ARING. THE STAMPS EMBOSSED BY THE POSTAL AUTHORITIES SHOWS THAT THAT POSTMAN VISITED HIS RESIDENCE NUMEROUS TIMES ON DATED 26.09.09, 30. 09.09, 01.10.2009 AND 5.10.2009 AND LATTER RETURNED BY THE POSTAL AUTHORITY AFTER 5 TH OCTOBER, 2009 WITH REMARKS PRAPATKARTA INKARI RETURNED TO SENDER. THEREAFTER, INTIMATION ORDER U /S 143(1) WAS SENT BY SPEED POST ON 9 MARCH, 2010 CREATING A DEMAND O F RS.1370/- WHICH WAS RECEIVED BY THE ASSESSEE ON THE SAME ADDR ESS AND HE ALSO APPLIED FOR THE RECTIFICATION OF DEMAND AND IS SUE A REFUND OF RS.8788/- FOR THE A.Y. 2008-09. FURTHER, NOTICE U/S 142(1) AND 143(2) ALONGWITH QUESTIONNAIRE WAS ISSUED THROUGH S PEED POST ON 20.05.2010 FIXING THE CASE FOR 28.05.2010. ON THE F IXED DATE NONE ATTENDED. ITA NO.132(ASR)/2012 ASSESSMENT YEAR: 2008-09 4 6. FROM THE ABOVE FINDINGS, WE FIND THAT THE NOTICE U/S 143(2) OF THE ACT WAS INDEED SENT BY SPEED POST AND NOT BY REGIST ERED POST. THE LD. CIT(A), HOWEVER, HAS HELD THAT NOTICE WAS SENT BY REGISTERED POST AND HAS RELIED UPON NUMBER OF CASE LAWS FOR THE PROPOSI TION THAT IN A CASE WHERE REGISTERED NOTICE IS SENT, THERE IS A DEEMED SERVICE OF NOTICE. THE FINDINGS OF THE LD. CIT(A) ARE REPRODUCED AS UNDER: 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFULLY. FROM THE MATERIAL LACED ON RECORD IT IS ESTABLISHED THAT THE APPELLANT WAS NOT AVAILABLE IN INDIA IN THE PERIOD FROM THE DATE WHEN THE NOTICE UNDER SECTION 143(2) DATED 18/09/2009 WAS ISSUED TILL AT LEAST 30/09/2009, THE LAST DATE FOR THE SERVICE OF THE NO TICE ON THE APPELLANT, SO AS TO INITIATE VALID PROCEEDINGS UNDE R SECTION 143(2). THE APPELLANT COULD NOT, THEREFORE, HAVE PERSONALLY RECEIVED THE NOTICE SENT THROUGH REGISTERED POST IN THIS PERIOD. THE POSTMAN HAS STATED THAT A MAID SERVANT WAS AVAILABLE AT THE HOU SE IN THIS PERIOD WHEN THE NOTICE WAS SOUGHT TO BE SERVED SEPTEMBER A ND OCTOBER 2009 AT THE RESIDENCE OF THE APPELLANT. THIS CLAIM HAS NOT BEEN CATEGORICALLY DENIED BY THE APPELLANT, THOUGH IT HA S BEEN CONTENDED THAT THE MAID SERVANT WAS NOT AUTHORISED TO RECEIVE SUCH NOTICES. THE EXAMINATION OF THE POSTMAN SHOWS THAT THE REGIS TERED ARTICLE WAS TENDERED AT THE HOUSE OF THE APPELLANT, AND THE APPELLANT HAS NOT BEEN ABLE TO LEAD ANYTHING TO SUGGEST THAT THE ARTICLE WAS NOT TENDERED AT THE APPELLANT'S RESIDENCE. THE FACT THA T THE POSTMAN HAD NOTED IN HIS OWN HANDWRITING THAT THE ADDRESSEE HAD LEFT INDIA, WHICH FACT IS ACCEPTED BY THE APPELLANT, ALSO PROVE S THAT THE POSTMAN DID TENDER THE NOTICE AT THE ASSESSEE'S RES IDENCE. THE POSTMAN HAS ALSO STATED THAT HE USED TO SERVE ALL T HE ARTICLES INCLUDING REGISTERED ARTICLES TO THE APPELLANTS SE RVANT ONLY. THIS IS AN IMPORTANT PIECE OF EVIDENCE, WHICH INDICATES THA T THE SERVANT OF THE APPELLANT WAS AUTHORISED TO RECEIVE REGISTERED ARTICLES ON HIS BEHALF. THE APPELLANT HAS NOT LED ANY EVIDENCE IN R EBUTTAL TO THIS EVIDENCE OF THE POSTMAN, NOR HAS HE DENIED THAT HIS SERVANT ACCEPTED OTHER REGISTERED LETTERS ADDRESSED TO HIM EVEN WHILE CONTENDING THAT THE AO HAD NOT ESTABLISHED THIS FAC T. IN THE CONTEXT OF THE FACT THAT THE ASSESSEE'S MAID SERVANT REFUSE D TO ACCEPT THE REGISTERED NOTICE SENT BY THE AO, THE IMPLICATIONS IN RELATION TO SERVICE OF THE SAID NOTICE BECOME QUITE IMPORTANT. ITA NO.132(ASR)/2012 ASSESSMENT YEAR: 2008-09 5 SECTION 282 OF THE INCOME TAX ACT DEALS WITH SERVIC E OF NOTICE UNDER VET. SUB-SECTION (1) OF THIS SECTION STATES T HAT A NOTICE UNDER THE ACT MAY BE *D ON THE PERSON THEREIN NAMED EITHE R BY POST OR AS IF IT WERE A SUMMONS ISSUED I COURT UNDER THE CODE OF CIVIL PROCEDURE, 1908. THUS, THE AO COULD SERVE A ICE EIT HER BY POST OR IN THE MANNER PROVIDED UNDER THE CODE OF CIVIL PROCEDU RE, 08. HENCE, WHEN THE AO CHOSE TO SERVE THE NOTICE ONLY THROUGH POST, HE WAS WELL WITHIN HIS RIGHTS TO DO SO AS PER THE PROVISIO NS OF THE INCOME TAX ACT. THERE WAS NO REQUIREMENT TO FIRST TRY AND SERVE THE NOTICE THROUGH A NOTICE SERVER BEFORE ATTEMPTING TO SEND T HE NOTICE BY POST, AS HAS BEEN SOUGHT TO BE CONTENDED BY THE LEARNED A R. THE MEANING OF THE TERM 'SERVICE BY POST' HAS BEEN GIVEN IN SEC TION 27 OF THE GENERAL CLAUSES ACT, 1897. THIS SECTION READS AS UN DER: - '27. MEANING OF SERVICE BY POST.- WHERE ANY CENTRAL ACT OR REGULATION MADE AFTER THE COMMENCEMENT OF THIS ACT AUTHORIZES OR REQUIRES ANY DOCUMENT TO BE SERVED BY POST, WHETHER THE EXPRESSION' SERVE' OR EITHER OF THE EXP RESSIONS' GIVE' OR' SEND' OR ANY OTHER EXPRESSION IS USED, TH EN, UNLESS A DIFFERENT INTENTION APPEARS, THE SERVICE SHALL BE D EEMED TO BE EFFECTED BY PROPERLY ADDRESSING, PRE- PAYING AND PO STING BY REGISTERED POST, A LETTER CONTAINING THE DOCUMENT, AND, UNLESS THE CONTRARY IS PROVED, TO HAVE BEEN EFFECTED AT TH E TIME AT WHICH THE LETTER WOULD BE DELIVERED IN THE ORDINARY COURSE OF POST. 5.2 THERE SHOULD NORMALLY BE NO DIFFICULTY IN DECID ING THE QUESTION AS TO WHETHER A NOTICE SENT BY REGISTERED POST HAS BEEN SERVED ON THE ADDRESSEE, BECAUSE IF THE ADDRESSEE RECEIVES A LETTER THERE WOULD BE AN ACKNOWLEDGEMENT OF THE SAME AND IF HE R EFUSES TO ACCEPT THE NOTICE TENDERED TO HIM, THE POSTMAN WOUL D MAKE A NOTING TO THAT EFFECT AND THAT WOULD AMOUNT TO SERVICE OF NOTICE. IF A NOTICE SENT THROUGH REGISTERED POST DOES NOT COME BACK UNS ERVED OR EVEN IF THE ACKNOWLEDGEMENT IS NOT RECEIVED BACK, THERE IS A PRESUMPTION OF SERVICE OF THE REGISTERED ARTICLE. HOWEVER, THE QUE STION TO WHICH A CLEAR ANSWER IS NOT PROVIDED IN THE LAW IS WHETHER, WHEN A REGISTERED ARTICLE IS RETURNED BACK BY THE POSTAL A UTHORITIES BECAUSE THE ADDRESSEE WAS NOT AVAILABLE OR THE ADDRESSEE DI D NOT CLAIM THE ARTICLE, THE ARTICLE CAN BE DEEMED TO BE SERVED ON THE ADDRESSEE. IF THE NOTICE U/S 143(2) SENT BY REGISTERED POST TO TH E CORRECT ADDRESS IS RETURNED BACK BY THE POSTAL AUTHORITIES BECAUSE THE ADDRESSEE WAS NOT AVAILABLE AT HIS ADDRESS AND THERE WAS NO A GENT AUTHORISED BY THE ASSESSEE TO RECEIVE THE REGISTERED NOTICE ON BEHALF OF THE ADDRESSEE, THE APPELLANTS CONTENTION WOULD IMPLY T HAT NO VALID PROCEEDINGS U/S 143(2) CAN BE INITIATED IN SUCH A C ASE EVEN THOUGH THE NOTICE WAS SENT BY A METHOD PRESCRIBED UNDER LA W. IT WOULD LEAD ITA NO.132(ASR)/2012 ASSESSMENT YEAR: 2008-09 6 TO A SITUATION WHERE EVEN THOUGH THE NOTICE WAS PRO PERLY ISSUED BY THE AO IN TIME BY REGISTERED POST AND THE REGISTERE D ARTICLE ALSO REACHED THE ASSESSEE'S ADDRESS WITHIN THE LIMITATIO N PERIOD OF SERVICE OF NOTICE ON THE ASSESSEE, THE PROCEEDINGS WOULD BE HELD TO BE INVALID BECAUSE THE NOTICE WAS NOT HANDED OVER T O THE APPELLANT OR TO HIS AUTHORISED AGENT. 5.3 THE AFORESAID SITUATION HAS BEEN CONSIDERED BY THE HON'BLE SUPREME COURT IN SEVERAL JUDGEMENTS. IN THE JUDGEME NT OF THE HONBLE APEX COURT DATED 28 NOVEMBER, 1988 IN THE C ASE OF MADAN & CO VS WAZIR JAIVIR CHAND, EQUIVALENT CITATIONS: 1 989 AIR 630, 1988 SCR SUPL. (3) 983, IN CIVIL APPEAL NO. 4146 OF 1985 DATED 28.11.1988, THE FACTS WERE THAT IN NOVEMBER 1976, T HE RESPONDENT ISSUED A NOTICE TO THE APPELLANT UNDER SECTION 11 O F THE JAMMU & KASHMIR HOUSES & SHOPS RENT CONTROL ACT, 1966 CALL ING UPON IT TO PAY THE ARREARS OF RENT. THE NOTICE ALSO TERMINATED THE TENANCY AND CALLED UPON THE APPELLANT TO VACATE THE DEMISED PRE MISES. THE NOTICE SENT BY REGISTERED POST WAS RECEIVED BACK BY THE RE SPONDENT WITH THE ENDORSEMENT 'LEFT WITHOUT ADDRESS, RETURNED TO SENDER'. THEREUPON THE RESPONDENT CAUSED A COPY OF THE NOTIC E TO BE FIXED TO ONE OF THE DOORS OF THE PREMISES IN QUESTION. NO PA YMENT OF RENT WAS HOWEVER MADE BY THE APPELLANT SUBSEQUENTLY. THE RES PONDENT, THEREFORE, FILED A SUIT IN JUNE 1977 SEEKING EJECTM ENT OF THE APPELLANT ON THE GROUND OF DEFAULT IN THE PAYMENT O F RENT. THE TRIAL COURT ORDERED EVICTION AND THE APPELLANT'S APPEALS BEFORE THE DISTRICT .JUDGE AND THE HIGH COURT AGAINST THE ORDER OF EVIC TION FAILED. BEFORE THE HONBLE APEX COURT THE APPELLANT CONTENDED THAT (1) THE SAFEGUARDS IN SS. 11 AND 12 OF THE ACT WERE INTENDE D FOR THE BENEFIT AND PROTECTION OF THE TENANT AND THEREFORE, WHERE T HE ACT PROVIDES FOR THE SERVICE OF THE NOTICE, BY POST, THIS REQUIR EMENT HAS TO BE STRICTLY COMPLIED WITH; (2) SUCH POSTAL SERVICE CAN NEITHER BE PRESUMED NOR CONSIDERED TO BE GOOD SERVICE WHERE TH E LATTER IS RETURNED TO THE SENDER DUE TO NON-AVAILABILITY OF T HE ADDRESSEE; (3) IN THE ABSENCE OF ANY ENABLING PROVISION, SERVICE BY S OME OTHER MODE, SUCH AS AFFIXTURE, CANNOT BE TREATED AS SUFFICIENT COMPLIANCE WITH THE STATUTE; AND (4) WHERE A POWER IS GIVEN TO DO A CER TAIN THING IN A CERTAIN WAY, THE THING MUST BE DONE IN THAT WAY OR NOT AT ALL AND OTHER METHODS OF PERFORMANCE ARE NECESSARILY FORBID DEN. THE HONBLE APEX COURT DISMISSED THE APPEAL, HOLDING TH AT THE PROVISO TO CLAUSE (I) OF SECTION 11(1) AND THE PROVISO TO SECT ION 12(3) ARE INTENDED FOR THE PROTECTION OF THE TENANT BUT NEVER THELESS, IT WOULD BE EASY TO SEE THAT TOO STRICT AND LITERAL A COMPLI ANCE OF THEIR LANGUAGE WOULD BE IMPRACTICAL AND UNWORKABLE. THEY NOTED THAT THE PROVISO INSISTED THAT BEFORE ANY AMOUNT OF RENT COU LD BE SAID TO BE IN ARREARS, A NOTICE HAD TO BE SERVED THROUGH POST. TH EY HELD THAT ALL THAT A LANDLORD COULD DO TO COMPLY WITH THIS PROVIS ION WAS TO POST A ITA NO.132(ASR)/2012 ASSESSMENT YEAR: 2008-09 7 PREPAID REGISTERED LETTER (ACKNOWLEDGMENT DUE OR OT HERWISE) CONTAINING THE TENANT'S CORRECT ADDRESS. ONCE HE DI D THAT AND THE LETTER WAS DELIVERED TO THE POST OFFICE, HE HAD NO CONTROL OVER IT. IT WAS THEN PRESUMED TO HAVE BEEN DELIVERED TO THE ADD RESSEE UNDER S. 27 OF THE GENERAL CLAUSES ACT. IT WAS HELD BY TH E HONBLE APEX COURT THAT TO INTERPRET THE PROVISION AS REQUIRING THAT THE LETTER MUST HAVE BEEN ACTUALLY DELIVERED TO THE ADDRESSEE, WOUL D BE VIRTUALLY RENDERING IT A DEAD LETTER. THEY NOTED THAT THE LET TER COULD NOT BE SERVED ON THE APPELLANT IF HE WAS AWAY FOR A CONSID ERABLE PERIOD OF TIME, AS IN THIS CASE. THEY HELD THAT IF A REGISTER ED LETTER ADDRESSED TO A PERSON AT HIS RESIDENTIAL ADDRESS DID NOT GET SERVED IN THE NORMAL COURSE AND WAS RETURNED, IT COULD ONLY BE AT TRIBUTED TO THE ADDRESSEE'S OWN CONDUCT. THEY HELD THAT OF THE ADDR ESSEE WAS COMPELLED TO BE AWAY FOR SOME TIME, ALL THAT HE HAD TO DO WAS TO LEAVE NECESSARY INSTRUCTIONS WITH THE POSTAL AUTHOR ITIES. THE HONBLE COURT HELD THAT THE MORE REASONABLE, EFFECTIVE, EQU ITABLE AND PRACTICAL INTERPRETATION WOULD BE TO READ THE WORDS 'SERVED' AS 'SENT BY POST', CORRECTLY AND PROPERLY ADDRESSED TO THE T ENANT, AND THE WORD 'RECEIPT' AS THE TENDER OF THE LETTER BY THE P OSTAL PEON AT THE ADDRESS MENTIONED IN THE LETTER. NO OTHER INTERPRET ATION WAS HELD TO FIT THE SITUATION AS IT WAS SIMPLY NOT POSSIBLE FOR A LANDLORD TO ENSURE THAT A REGISTERED LETTER SENT BY HIM GOT SER VED ON, OR WAS RECEIVED BY THE TENANT. THE HONBLE APEX COURT HELD THAT THE LANDLORD MUST BE HELD TO HAVE COMPLIED WITH THE STA TUTORY REQUIREMENT BY SENDING A NOTICE CORRECTLY ADDRESSED TO THE TENANT BY REGISTERED POST. 5.4. IN THE JUDGMENT DATED 29.9.1999 IN THE CASE OF K. BHASKARAN VS. SANKARAN YAIDHYAN BALAN EQUIVALENT CITATIONS: A IR 1999 SC 3762, 1999 (2) ALD CRI 801, ONE OF THE ISSUES UNDER CONSIDERATION OF THE HONBLE APEX COURT WAS THE SERVICE OF NOTICE U/ S 138 OF THE NEGOTIABLE INSTRUMENTS ACT. THE NOTICE SENT BY THE COMPLAINANT THROUGH REGISTERED POST WAS RETURNED BY THE POSTAL AUTHORITIES WITH THE REMARKS UNCLAIMED. THE DEFENDANT PLEADED THAT HE WAS NOT AWARE OF THE NOTICE AND, THEREFORE, COULD NOT BE HE LD TO BE GUILTY OF NOT COMPLYING WITH THE NOTICE TO MAKE THE PAYMENT W ITHIN 15 DAYS OF THE AMOUNT IN RESPECT OF THE BOUNCED CHEQUE- A C ONDITION PRECEDENT TO LAUNCHING PROSECUTION FOR DISHONOUR OF A CHEQUE. THE HONBLE APEX COURT HAVE HELD IN THIS DECISION THAT THE SITUATION WOULD AMOUNT TO REFUSAL OF THE REGISTERED ARTICLE A ND THAT THE SERVICE OF NOTICE WAS DEEMED TO HAVE BEEN MADE ON THE DEFEN DANT. 5.5. IN MY VIEW, THE AFORESAID JUDGEMENTS OF THE HO NBLE SUPREME COURT CLEARLY LAY DOWN THAT EVEN IF A REGISTERED AR TICLE IS RETURNED UNSERVED FOR THE REASON THAT EITHER THE ADDRESSEE W AS NOT AVAILABLE OR HE DID NOT CLAIM THE ARTICLE, THE NOTICE WOULD B E DEEMED TO HAVE ITA NO.132(ASR)/2012 ASSESSMENT YEAR: 2008-09 8 BEEN SERVED ON THE ADDRESSEE IF THE ADDRESS HAS BEE N CORRECTLY NOTED ON THE ARTICLE AND THE ARTICLE HAS BEEN PREPA ID. HENCE, IN THE PRESENT CASE, SINCE THE POSTMAN DID ACTUALLY TENDER THE ARTICLE AT THE ASSESSEE'S RESIDENCE BUT COULD NOT HAND IT OVER TO THE APPELLANT BECAUSE HE WAS OUT OF INDIA AT THAT TIME AND THE AS SESSEE'S SERVANT DID NOT ACCEPT THE NOTICE, I HOLD THAT THE NOTICE U NDER SECTION 143(2) DATED 18/09/2009 WAS SERVED ON THE APPELLANT IN VIE W OF THE PROVISIONS OF SECTION 27 OF THE GENERAL CLAUSES ACT . 5.6. THE DECISION IN THE CASE OF R.K.VASISTH VS UNION OF INDIA (SUPRA) RELIED UPON BY THE LEARNED AR IS ON A DIFFE RENT PROPOSITION, I.E. THAT THERE COULD BE NO PRESUMPTION THAT THE RE GISTERED COVER WAS TENDERED TO THE ADDRESSEE IF HE STATED ON OATH THAT IT WAS NEVER TENDERED TO HIM. IN THE PRESENT CASE IT IS ESTABLIS HED THAT THE REGISTERED COVER WAS TENDERED AT THE ADDRESS OF THE ASSESSEE. HENCE, THIS JUDGEMENT DOES NOT ASSIST THE APPELLANT . THE DECISION IN THE CASE OF GUJARAT ELECTRICITY BOARD VS. ATMARAM SUNGOMAL POSHAMI (SUPRA) LAYS DOWN THAT THE PRESUMPTION REGA RDING SERVICE DUE TO REFUSAL WAS A REBUTTABLE PRESUMPTION. HOWEVE R, EVEN AS PER THIS JUDGEMENT THE PRESUMPTION MAY BE REBUTTED BY S HOWING THAT THE ADDRESS MENTIONED ON THE COVER WAS INCORRECT OR THAT THE POSTAL AUTHORITY NEVER TENDERED THE REGISTERED LETTER TO H IM OR THAT THERE WAS NO OCCASION FOR HIM TO REFUSE THE SAME. IN THE PRESENT CASE IT IS NOT SHOWN THAT THE ADDRESS MENTIONED ON THE COVER W AS INCORRECT AND IT HAS BEEN ESTABLISHED THAT THE POSTAL AUTHORI TY TENDERED THE REGISTERED LETTER AT THE ADDRESS OF THE APPELLANT. THE ISSUE AS TO NO OCCASION TO REFUSE THE LETTER HAS BEEN DISCUSSED EA RLIER. THE OTHER JUDGEMENTS RELIED UPON BY THE LEARNED AR RELATING T O REFUSAL WOULD ALSO, THEREFORE, NOT BE APPLICABLE TO THE FACTS OF THE PRESENT CASE. THE DECISION IN THE CASE OF CIT VS SILVER STREAK TRADIN G (P) LTD (SUPRA) IS ALSO NOT APPLICABLE BECAUSE THE NOTICE IS DEEMED TO HAVE BEEN SERVED AS HELD IN THE PRECEDING PARAGRAPH. THE CONT ENTION THAT THE NOTICE SHOULD BE SERVED ONLY THROUGH REGISTERED AD IS ALSO NOT CORRECT, AS HELD BY THE HONBLE APEX COURT IN THE C ASE OF MADAN & CO VS WAZIR JAIVIR CHAND (SUPRA) IN WHICH IT WAS HE LD THAT THE REGISTERED ARTICLE WAS REQUIRED TO BE SENT EITHER W ITH OR WITHOUT ACKNOWLEDGEMENT DUE, FOR THE PURPOSE OF THE PRESUMP TION UNDER SECTION 27 OF THE GENERAL CLAUSES ACT TO HOLD GOOD. THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE O F CIT VS AVI OIL INDIA (P) LTD (SUPRA) IS NOT APPLICABLE BECAUSE IN THIS CASE THE NOTICE BY POST WAS SERVED BEYOND THE PERIOD OF LIMITATION AND THE FIRST NOTICE SERVED BY AFFIXTURE WAS HELD TO BE INVALID B ECAUSE THERE WAS NO REASON TO INFER THAT THE NOTICE COULD NOT BE SER VED IN AN ORDINARY WAY. THE POSITION AS IS ARISING IN THE CASE UNDER C ONSIDERATION, THAT IS WHEN THE REGISTERED ARTICLE WAS TENDERED BEFORE THE LIMITATION DATE, HAS NOT BEEN CONSIDERED IN THIS DECISION. IN THE DECISION IN THE ITA NO.132(ASR)/2012 ASSESSMENT YEAR: 2008-09 9 CASE OF ACIT VS HOTEL BLUE MOON (SUPRA) THE HONBLE SUPREME COURT HAVE HELD THAT EVEN IN THE CASE OF A BLOCK ASSESSME NT IT WAS NECESSARY TO ISSUE A NOTICE UNDER SECTION 143(2). T HIS JUDGEMENT IS ON A DIFFERENT ISSUE. THE APPELLANT HAS RELIED ON S EVERAL OTHER JUDGEMENTS. THESE JUDGEMENTS HOLD THAT SERVICE OF N OTICE IN THE PRESCRIBED PERIOD WAS A CONDITION PRECEDENT FOR ASS ESSING THE TOTAL INCOME OF THE ASSESSEE UNDER SECTION 143(3) OF THE ACT. IT HAS BEEN HELD EARLIER THAT SINCE THE PREPAID NOTICE IN THE P RESENT CASE WAS SENT BY REGISTERED POST TO THE CORRECT ADDRESS OF T HE ASSESSEE AND WAS TENDERED AT THE ADDRESS OF THE ASSESSEE BUT WAS RETURNED UNSERVED, IT IS TO BE DEEMED THAT THE NOTICE WAS SE RVED ON THE APPELLANT ON OR BEFORE 30/09/2009. HENCE, GROUND NU MBERS 1 AND 2 OF APPEAL ARE REJECTED. 6. FROM THE ABOVE FINDINGS OF THE LD. CITA), WE FIND T HAT HE HAS HEAVILY PLACED RELIANCE ON THE CASE LAW, WHERE THE NOTICE WAS SENT THROUGH REGISTERED POST, WHEREAS THE FACT REMAINS T HAT THE NOTICE WAS NOT SENT THROUGH REGISTERED POST. THEREFORE, THE CA SE LAWS RELIED UPON BY THE LD. CIT(A) ARE NOT APPLICABLE TO THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. THE HONBLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOON (SUPRA) HAS HELD THAT SERVICE OF NOTICE UNDER SECTI ON 143(2) OF THE ACT, IS A MANDATORY REQUIREMENT AND WITHOUT SERVICE OF SUCH NOTICE, THE ASSESSMENT IS NOT A VALID ASSESSMENT. THE RELEVANT FINDINGS OF THE HONBLE SUPREME COURT ARE REPRODUCED BELOW: IF THE ASSESSING OFFICER, FOR ANY REASON, REPUDIAT ES THE RETURN FILED BY AN ASSESSEE IN RESPONSE TO NOTICE U/S 158BC (A) OF THE INCOME TAX ACT, 1961, RELATING TO A BLOCK ASSESSMENT, THE ASSESSING OFFICER MUST NECESSARILY ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT WITHIN THE TIME PRESCRIBED IN THE PROVISO TO SECTION 143(2 ). BY MAKING THE ISSUE F NOTICE MANDATORY, SECTION 158 BC, DEALING WITH BLOCK ASSESSMENTS, MAKES SUCH NOTICE THE VERY FOUNDATION FOR JURISDICTION. SUCH NOTICE IS REQUIRED TO BE SERVED ON THE PERSON WHO IS FOUND TO HAVE UNDISCLOSED INCOME. ITA NO.132(ASR)/2012 ASSESSMENT YEAR: 2008-09 10 IF AN ASSESSMENT IS TO BE COMPLETED U/S 143(3) READ WITH SECTION 158BC, NOTICE U/S 143(2) SHOULD BE ISSUED WITHIN ON E YEAR THE DATE OF FILING OF THE BLOCK RETURN. OMISSION ON THE PART OF THE ASSESSING AUTHORITY TO ISSUE NOTICE U/S 143(2) CANNOT BE A P ROCEDURAL IRREGULARITY AND IS NOT CURABLE. THEREFORE, THE REQ UIREMENT OF NOTICE U/S 143(2) CAN NOT BE DISPENSED WITH. 7. FURTHER, FOLLOWING THE ABOVE DECISION OF THE HON BLE SUPREME COURT, THE HONBLE ALLAHABAD HIGH COURT IN THE CAS E OF CIT, LUCKNOW VS. SALARPUR COLD STORAGE (PVT.) LTD., 50 TAXMAN.COM 10 5, HAS CLEARLY HELD THAT ASSUMPTION OF JURISDICTION WITHOUT ISSUING OF NOTICE U/S 143(2) CANNOT BE CURED BY TAKING RECOURSE TO DEEMING FICTI ON U/S 292BB OF THE ACT. THE RELEVANT FINDINGS OF THE HONBLE COURT ARE REPRODUCED BELOW: SECTION 292BB WAS INSERTED BY THE FINANCE ACT, 20 08 WITH EFFECT FROM 1-4-2008. SECTION 292BB PROVIDES A DEEM ING FICTION. THE DEEMING FICTION IS TO THE EFFECT THAT ONCE THE ASSESSEE HAS APPEARED IN ANY PROCEEDINGS OR COOPERA TED IN ANY ENQUIRY RELATING TO AN ASSESSMENT OR REASSESSME NT, IT SHALL BE DEEMED THAT ANY NOTICE UNDER THE PROVISION S OF THE ACT, WHICH IS REQUIRED TO BE SERVED ON THE ASSESSEE , HAS BEEN DULY SERVED UPON HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF THE ACT. THE ASSESSEE IS PRECLUDED FR OM TAKING ANY OBJECTION IN ANY PROCEEDING OR ENQUIRY THAT THE NOTICE WAS (I) NOT SERVED UPON HIM; OR (II) NOT SERVED UPON HI M IN TIME; OR (III) SERVED UPON HIM IN AN IMPROPER MANNER. IN OTH ER WORDS, ONCE THE DEEMING FICTION COMES INTO OPERATION, THE ASSESSEE IS PRECLUDED FROM RAISING A CHALLENGE ABOUT THE SERVIC E OF A NOTICE, SERVICE WITHIN TIME OR SERVICE IN AN IMPROP ER MANNER. THE PROVISO TO SECTION 292BB HOWEVER, CARVES OUT AN EXCEPTION TO THE EFFECT THAT THE SECTION SHALL NOT APPLY WHERE THE ASSESSEE HAS RAISED AN OBJECTION BEFORE THE COM PLETION OF THE ASSESSMENT OR REASSESSMENT. SECTION 292BB CANNO T OBVIATE THE REQUIREMENT OF COMPLYING WITH A JURISDI CTIONSAL CONDITION. FOR THE ASSESSING OFFICER TO MAKE AN ORD ER OF ASSESSMENT UNDER SECTION143(3) IT IS NECESSARY TO I SSUE A NOTICE UNDER SECTION 143(2) AND IN THE ABSENCE OF A NOTICE ITA NO.132(ASR)/2012 ASSESSMENT YEAR: 2008-09 11 UNDER SECTION 143(2) THE ASSUMPTION OF JURISDICTION ITSELF WOULD BE INVALID. [PARA 9 AND 10] THIS PRINCIPLE IS NO LONGER IN DOUBT HAVING DUE REG ARD TO THE LAW LAID DOWN BY THE SUPREME COURT IN THE DECISION IN ASSTT. CIT V. HOTEL BLUE MOON [2010) 321 ITR 362/188 TAXMAN 113 . WHILE CONSTRUING THE PROVISIONS OF CHAPTER XIV-B OF THE ACT IN RELATION TO BLOCK ASSESSMENTS, THE SUPREME COURT IN THAT DECISION CONSIDERED THE EFFECT OF SECTION 143(2) AN D HAS, THEREFORE, CLEARLY HELD THAT THE OMISSION ON THE PA RT OF THE ASSESSING OFFICER TO ISSUE A NOTICE UNDER SECTION 1 43(2) IS NOT A PROCEDURAL IRREGULARITY AND IS NOT CURABLE. THE R EQUIREMENT OF A NOTICE UNDER SECTION 143(2) CANNOT BE DISPENSE D WITH. [PARAS 11 AND 12] IN OUR VIEW, WHERE THE ASSESSING OFFICER FAILS TO I SSUE A NOTICE WITHIN THE PERIOD OF SIX MONTHS AS SPELT OUT IN THE PROVISO TO CLAUSE (II) OF SECTION 143(2),THE ASSUMPTION OF JUR ISDICTION UNDER SECTION 143(3) WOULD BE INVALID. THIS DEFECT IN REGARD TO THE ASSUMPTION OF JURISDICTION CANNOT BE CURED BY T AKING RECOURSE TO THE DEEMING FICTION UNDER SECTION 292BB . THE FICTION IN SECTION 292BB OVERCOMES A PROCEDURAL DEF ECT IN REGARD TO THE NON SERVICE OF A NOTICE ON THE ASSESS EE, AND OBVIATES A CHALLENGE THAT THE NOTICE WAS EITHER NOT SERVED OR THAT IT WAS NOT SERVED IN TIME OR THAT IT WAS SERVE D IN AN IMPROPER MANNER, WHERE THE ASSESSEE HAS APPEARED IN A PROCEEDING OR COOPERATED IN AN ENQUIRY WITHOUT RAIS ING AN OBJECTION. SECTION 292BB CANNOT COME TO THE AID OF THE REVENUE IN A SITUATION 1 WHERE THE ISSUANCE OF A NOTICE ITSELF WAS NOT WITHIN THE PRESCRIBED PERIOD, IN WHICH EVEN T THE QUESTION OF WHETHER IT WAS SERVED CORRECTLY OR OTHE RWISE, WOULD BE OF NO RELEVANCE WHATSOEVER. FAILURE TO ISS UE A NOTICE WITHIN THE PRESCRIBED PERIOD WOULD RESULT IN THE AS SESSING OFFICER ASSUMING JURISDICTION CONTRARY TO LAW. [PAR A 13] FOR THE AFORESAID REASONS, THERE IS NO ERROR IN THE VIEW WHICH WAS TAKEN BY THE TRIBUNAL. THE APPEAL IS ACCORDINGL Y, DISMISSED. [PARA 15] 9. IN VIEW OF THE ABOVE DISCUSSION, GROUND NO. 1 OF THE APPEAL IS ALLOWED AND THE ASSESSMENT IS CANCELLED. ITA NO.132(ASR)/2012 ASSESSMENT YEAR: 2008-09 12 10. SINCE WE HAVE CANCELLED THE ASSESSMENT, REST OF THE GROUNDS RAISED BY THE ASSESSEE NEED NOT REQUIRE ADJUDICATION. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15/09/ 2 016. SD/- SD/- (A.D. JAIN) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER /SKR/ DATED: 15/09/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. GURPARSHOTAM SINGH, P.O. SAMIRPUR, JALANDHAR. 2. THE ITO R- IV(2), JALANDHAR. 3. THE CIT(A), JALANDHAR. 4. THE CIT, JALANDHAR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.