ACIT, New Delhi V. Sh. Shiv Charan Lal Gupta, New Delhi

ITA 1668/DEL/2010

• Counselvise Citation: 166820114 RSA 2010
• Duration Of Justice: 1 year(s) 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 07-12-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 15-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MONGA
• Assessee Lawyers: VARUN KOHLI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI A.N. PAHUJA ITA NO. 1668/DEL/2010 ASSESSMENT YEAR: 2006-07 ASSISTANT COMMISSIONER OF IT, VS. SHIV CHARAN LAL GUPTA, CIRCLE 5(1), 5836, BASTI HARPHOOL SINGH, NEW DELHI. SADAR BAZAR, NEW DELHI (PAN: AAHPG5152C) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI AK MONGA, DR RESPONDENT BY: SHRI VARUN KOHLI, CA DATE OF HEARING : 07.12.2011 DATE OF PRONOUNCEMENT : 09 .12.2011 ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORDE R OF LEARNED CIT(APPEALS) DATED 15.02.2010 PASSED FOR ASSESSMENT YEAR 2006-07. THE SOLITARY GRIEVANCE OF THE REVENUE IS THAT LEARNED C IT(APPEALS) HAS ERRED IN ANNULLING THE ASSESSMENT ORDER ON THE GROUND THAT S TATUTORY NOTICE UNDER SEC. 143(2) OF THE INCOME-TAX ACT, 1961 WAS ISSUED AFTER EXPIRY OF ONE YEAR FROM THE END OF THE MONTH IN WHICH RETURN WAS FILED. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED HIS RETURN OF INCOME ON 24.11.2006 DECLARING AN INCOME OF RS.5,19 ,690. ACCORDING TO THE ASSESSING OFFICER, A NOTICE UNDER SEC. 143(2) WAS I SSUED ON 16.11.2007 BY 2 SPEED POST AND THE NOTICE WAS NOT RECEIVED BACK BY THE DEPARTMENT, MEANING THEREBY, A PRESUMPTION OF SERVICE OF THIS NOTICE IS AVAILABLE. ASSESSING OFFICER THEREAFTER OBSERVED THAT JURISDICTION OVER THE ASSESSEE WAS CHANGED AND A FRESH NOTICE UNDER SEC. 143(2) OF THE ACT WAS SERVED UPON THE ASSESSEE. 3. THE ISSUE FOR OUR ADJUDICATION IS WHETHER NOTICE UNDER SEC. 143(2) OF THE ACT WAS ISSUED WITHIN 12 MONTHS FROM THE END OF THE MONTH IN WHICH RETURN WAS FILED BY THE ASSESSEE. IN OTHER WORDS, W HETHER NOTICE DATED 16.11.2007 WAS ISSUED TO THE ASSESSEE OR NOT. BECA USE THE NEXT NOTICE WAS ISSUED ON IST OF JULY 2008 WHICH IS ADMITTEDLY AFTE R EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH RETURN WAS FILED . 4. WITH THE ASSISTANCE OF LEARNED REPRESENTATIVES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. WE HAVE SUMMONED ORIGINAL RE CORD. THE COPY OF THE RETURN FILED BY THE ASSESSEE IS AVAILABLE IN THE OR IGINAL RECORD. THE ASSESSEE HAS SHOWN HIS ADDRESS IN FORM NO.2D AS UNDER: 1) NAME : SHIV CHARAN LAL GUPTA 2) FATHERS NAME: SHRI RAM KISHORE GUPTA 3) ADDRESS: 536/32, BASTI HARPHOOL SINGH, SADAR THANA RD. DELHI. 3 5. THE ALLEGED COPY OF THE NOTICE DATED 16.11.2007 IS ALSO AVAILABLE ON THE RECORD AND THE RECEIPT OF POSTAL AUTHORITY IS A LSO AFFIXED THEREON. THIS NOTICE WAS ISSUED TO THE ASSESSEE BY MENTIONING ADD RESS AS G-74, ASHOK VIHAR-I, NEW DELHI. LEARNED DR POINTED OUT THAT THI S ADDRESS MUST BE ON THE PERMANENT ACCOUNT OF THE ASSESSEE AND, THEREFORE, N OTICE WAS ISSUED ON THIS ADDRESS. ON THE OTHER HAND, LEARNED COUNSEL FOR THE ASSESSEE RELIED UPON THE ORDER OF THE LEARNED CIT(APPEALS). 6. ON DUE CONSIDERATION OF THE FACTS AND CIRCUMSTA NCES, WE ARE OF THE VIEW THAT A NOTICE UNDER SEC. 143(2) OF THE ACT WAS REQUIRED TO BE SERVED UPON THE ASSESSEE IN ORDER TO PROVIDE AN OPPORTUNIT Y TO THE ASSESSEE, WHAT HE WANTS TO SHOW IN SUPPORT OF HIS RETURN. IN THE NOTI CE, ASSESSING OFFICER HAS ALSO ALLEGED THAT THERE ARE CERTAIN POINTS IN CONNE CTION WITH THE RETURN OF INCOME SUBMITTED BY THE ASSESSEE ON 24.11.2006 FOR ASSESSMENT YEAR 2006- 07, ON WHICH A.O. REQUIRED FURTHER INFORMATION. MEA NING THEREBY, AN OPPORTUNITY WAS GRANTED TO THE ASSESSEE TO PRODUCE ANY DOCUMENT, ACCOUNT OR ANY OTHER DOCUMENTS ON WHICH HE MAY RELY IN SUPP ORT OF THE RETURN OF INCOME FILED BY HIM. ASSESSING OFFICER DID NOT ISSU E THE NOTICE ON THE ADDRESS GIVEN IN THE RETURN I.E. FORM NO.2D SUBMITT ED BY THE ASSESSEE. THE NOTICE HAS BEEN SENT ON ALTOGETHER A DIFFERENT ADDR ESS WITHOUT ESTABLISHING 4 ANY NEXUS OF THE ASSESSEE. THIS ADDRESS IS AVAILABL E ONLY IN THE LIFE INSURANCE POLICY OF THE ASSESSEE WHOSE COPY IS ALSO AVAILABLE ON THE RECORD. IT SUGGESTS THAT ASSESSING OFFICER DID NOT EXAMINE THE COPY OF THE RETURN BEFORE ISSUE OF NOTICE RATHER HE MUST HAVE THE COPY OF THE INSURANC E POLICY OF THE ASSESSEE ISSUED BY BAJAN ALLIANZ LIFE INSURANCE COMPANY. THE ADDRESS MENTIONED IN THE LIFE INSURANCE POLICY WOULD NOT NECESSARY BE TH E ADDRESS OF THE ASSESSEE AT THE RELEVANT POINT OF TIME. IN HIS RETURNS FOR THE EARLIER YEARS, HE HAS GIVEN THE ADDRESS OF BASTI HARPHOOL SINGH. THUS, THE NOTI CE WAS NOT ISSUED ON THE CORRECT ADDRESS BY THE ASSESSING OFFICER. THE PRESU MPTION OF ITS SERVICE UPON THE ASSESSEE ON ACCOUNT OF ISSUANCE OF NOTICE WITHIN THE TIME PERIOD BY WAY OF A SPEED POST WILL NOT ARISE BECAUSE CORRECT ADDRESS WAS NOT MENTIONED. LEARNED FIRST APPELLATE AUTHORITY HAS RI GHTLY APPRECIATED THE CONTROVERSY AND HAS RIGHTLY OBSERVED THAT NOTICE UN DER SEC. 143(2) OF THE ACT WAS NOT SERVED UPON THE ASSESSEE WITHIN THE STATUTO RY TIME PERIOD. FOR BUTTRESSING OUR VIEW POINT, WE WOULD LIKE TO MAKE A REFERENCE TO THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. BHAN TEXTILES REPORTED IN 287 ITR 370. IN THIS CASE, THE ASSESSEE FILED THE RETURN ON NOVEMBER 20, 1996. THE NOTICE UNDER SECTION 143(2) WAS TO BE SERVED UPON THE ASSESSEE BY THE END OF NOVEMBER 1997. THE NOTIC E WAS ISSUED ON 28.11.1997 BUT WAS ACTUALLY RECEIVED BY THE ASSESSE E ON DECEMBER 1, 1997. 5 THE HONBLE COURT HAS UPHELD THE VIEW OF THE ITAT T HAT THE ASSESSMENT WAS NOT VALID. IN VIEW OF THE ABOVE DISCUSSION, THE APP EAL OF THE REVENUE IS REJECTED. DECISION PRONOUNCED IN THE OPEN COURT. SD/- SD/- ( A.N. PAHUJA ) ( RA JPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 09/12/2011 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR