SMT. SUNITA SINGHAI, Bhopal V. THE ITO Ward 3(1), Bhopal

ITA 37/IND/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99181 (ITAT-INDORE)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 03-12-2015
• Assessment Year: 1997-1998
• Appeal Filed On: 12-01-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S S DESHPANDE
• Keywords: Question of law
• Section: 27; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE (SINGLE MEMBER CASE) BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER I.T.A.NO. 37/IND/2015 A.Y. : 1997-98 SMT.SUNITA SINGHAI, BHOPAL ITO, 3(1), BHOPAL VS. APPELLANT RESPONDENT PAN NO. ANFPS2393N A PPELLANT S BY : SHRI S.S. DESHPANDE, C. A. RESPONDENT BY : SHRI R. A. VERMA, DR O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A)-II, BHOPAL, DATED 25.09.2014 FOR THE ASSE SSMENT YEAR 1997-98. DATE OF HEARING : 03.12. 2015 . DATE OF PRONOUNCEMENT : 22 . 1 2 .2015 SMT. SUNITA SINGHAI, BHOPAL VS. ITO, WARD 3(1), BH OPAL, I.T.A.NO. 37/IND/2015 A.Y. 1997-98 2 2 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE H AS FILED RETURN ON 3.4.1997 DECLARING INCOME OF RS. 55 ,330/- ALONGWITH AGRICULTURAL INCOME OF RS. 5,51,000/-. TH E ASSESSEES INCOME WAS ASSESSED BY THE ASSESSING OFF ICER U/S 143(2) AND ASSESSEES AGRICULTURAL INCOME OF RS. 5, 51,000/- WAS TREATED AS INCOME FROM OTHER SOURCES AND ADDITI ON HAS BEEN MADE. 3. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. C IT(A) HAS DISMISSED THE APPEAL. 4. BEFORE THE AO AND THE CIT(A), THE ASSESSEE HAS TAKE N CONTENTION THAT NO NOTICE U/S 143(2) WAS SERVED TO THE ASSESSEE AND, THEREFORE, WHEN THE NOTICE IS NOT SER VED, THE ASSESSMENT IS BAD IN LAW. HE HAS ALSO FILED WRITTEN SUBMISSION, WHICH READS AS UNDER :- THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM SALE AND PURCHASE OF PETROLEUM PRODUCT AND AGRICULTURE I NCOME. THE ONLY POINT IN THIS APPEAL IS REGARDING THE SERV ICE OF NOTICE U/S 143(2) ON THE ASSESSEE. SMT. SUNITA SINGHAI, BHOPAL VS. ITO, WARD 3(1), BH OPAL, I.T.A.NO. 37/IND/2015 A.Y. 1997-98 3 3 THE ASSESSEE HAS TAKEN A DIVORCE FROM HER HUSBAND O N 09.10.1993. THE COPY OF THE DECREE IS ENCLOSED HEREWITH. IN THE RETURN THE ASSESSEE HAS BEEN SHOWN AS A DAUGHTER OF SHRI V .C. JAIN AND THE ADDRESS IS GIVEN AT 38 HALALPURA, INDO RE ROAD, BHOPAL. THIS RETURN WAS FILED ON 03.04.1997. THE NOTICE U/S 143(2) HAS BEEN ISSUED ON 06.04.1998 GIVING THE ADDRESS OF 38 HALALPURA, BHOPAL BUT THE SAID NOTICE WAS NOT SERVED ON THE ASSESSEE OR HER REPRESENTATIVE AT THE SAID ADDRESS. IT IS THE ALLEGATION OF THE DEPARTMEN T THAT THE NOTICE HAS BEEN SERVED ON THE HUSBAND OF THE ASSESS EE AT THE ADDRESS GIVEN ON THE RETURN, THROUGH THE DEPART MENTAL INSPECTOR. HOWEVER, THE REPORT OF THE INSPECTOR IS NOT AVAILABLE ON THE FILE AND NOT SUPPLIED TO THE ASSES SEE INSPITE OF APPLICATION UNDER RTI. THE PAPERS SUPPLI ED BY THE DEPARTMENT AGAINST THE RTI APPLICATION HAVE BEE N ATTACHED FROM PAGE 83 TO 97 OF PB. THUS THE THEORY OF THE SERVICE OF NOTICE AT THE ADDRESS GIVEN IN THE NOTIC E IS TOTALLY BASELESS AND WITHOUT ANY EVIDENCE. SMT. SUNITA SINGHAI, BHOPAL VS. ITO, WARD 3(1), BH OPAL, I.T.A.NO. 37/IND/2015 A.Y. 1997-98 4 4 AS SUBMITTED ABOVE IT IS ALLEGED THAT THE SAID NOTI CE HAS BEEN SERVED ON THE HUSBAND OF THE ASSESSEE ON THE ADDRESS GIVEN ON THE RETURN. IT IS IMPOSSIBLE THAT THE DIVORCED HUSBAND WOULD RECEIVE THE NOTICE AT THE AD DRESS OF THE ASSESSEE WHEN LIVING SEPARATELY AT A LONG DI STANCE. EVEN OTHERWISE AFTER THE DIVORCE THE' HUSBAND HAS N O LOCUS STANDI TO RECEIVE ANY NOTICES, THE ADDRESS OF THE E X- HUSBAND SHRI VINOD KUMAR SINGHAI, IN THE RETURN IS C/27 BDA COLONY, KOHEFIZA, BHOPAL WHICH IS FAR AWAY FROM THE PLACE OF THE ASSESSEE, THE COPY OF THE RETURN OF TH E EX- HUSBAND ALONG WITH THE NOTICE U/S 143(2) IS ENCLOSE D HEREWITH, FROM THE NOTICE U/S 143(2) ISSUED IN THE NAME OF EX - HUSBAND IT WOULD BE SEEN THAT THE SAID NOTICE IS IS SUED ON 06.04.1998 FIXING THE DATE AS 25.04.1998. FROM THE COMPARISON OF BOTH THE NOTICES IN THE NAME OF THE A SSESSEE AND ISSUED TO THE HUSBAND IT WOULD BE SEEN THAT BOT H THE NOTICES ARE ISSUED ON 06.04.1998 FIXING THE DATE ON 25.04.1998. ON BOTH THE NOTICES THERE IS AN OVERWRI TING FOR SMT. SUNITA SINGHAI, BHOPAL VS. ITO, WARD 3(1), BH OPAL, I.T.A.NO. 37/IND/2015 A.Y. 1997-98 5 5 THE DATE OF 25 TH . THE PROCEEDINGS OF BOTH THE PARTIES WERE TAKEN TOGETHER AND THE EX-HUSBAND APPEARED SIMULTANEOUSLY. IT WAS ALLEGED THAT THE MARRIAGE DIVORCE WAS NOT KNOWN TO THE DEPARTMENT AND WAS NOT INFORMED. SINCE THE RETU RN WAS FILED IN 1997 MUCH AFTER THE DIVORCE THERE WAS NO NECESSITY TO INFORM THE DEPARTMENT. THE NOTICE SHOU LD HAVE BEEN SERVED AS PER THE PROVISIONS OF SEC. 282 WHEREIN IT HAS BEEN STATED THAT IT WOULD BE SERVED BY DELIVERING THE COPY TO THE PERSON NAMED THEREIN EIT HER BY POST OR THROUGH COURIER SERVICE OR IN SUCH MANNER P ROVIDED UNDER THE CODE OF CIVIL PROCEDURE. THE PROVISIONS O F CPC HAVE BEEN GIVEN AT PAGE 6 OF PB. RULE 12 CLEARLY ST ATES THAT THE SERVICE HAS TO BE ON THE PERSON UNLESS HE HAS AN AGENT EMPOWERED TO ACCEPT SERVICE. IN THE INSTANT CASE SERVICE AS ALLEGED ON A THIRD PERSON (EX-HUSBAND) I S TOTALLY INVALID AND IMPROPER. EVEN ON THE ASSESSMENT ORDER IT HAS BEEN WRONGLY MENTIONED AS SMT SUNITA SINGHAI W/O SH RI VINOD KUMAR SINGHAI. IT SEEMS THAT THE NOTICES ARE ISSUED SMT. SUNITA SINGHAI, BHOPAL VS. ITO, WARD 3(1), BH OPAL, I.T.A.NO. 37/IND/2015 A.Y. 1997-98 6 6 UNDER A WRONG ASSUMPTION SO ALSO THE ASSESSMENT HAS BEEN FRAMED ON THE WRONG PRESUMPTIONS. THE CASE LAW S CITED BY THE LD CIT(A) IS TOTALLY NON APPLICABLE SI NCE IN THAT CASE THE NOTICE WAS SERVED ON THE HUSBAND AT THE GI VEN ADDRESS. IN THE INSTANT CASE THE NOTICE IS NEVER SERVED ON THE ADDRESS GIVEN THEREON AND ALLEGED TO BE SERVED ON EX- HUSBAND WHO IS RESIDING FAR AWAY. THE HON'BLE HIGH COURT HAS SET ASIDE THE MATTER WI TH A CLEAR DIRECTION THAT THE CIT(A) SHALL ADDRESS ITSEL F WITH REGARD TO ISSUE WHETHER NOTICES HAD BEEN SERVED WIT HIN A SPAN OF ONE YEAR AS ENGRAFTED U/S 143(2) OF THE ACT . THE HON'BLE TRIBUNAL IN ITS ORDER DATED 25.01.2012 PARA 7.1 AT PAGE 9 HAS ALSO DIRECTED TO ASCERTAIN WHETHER NOTI CE U/S 143(2) WAS SERVED ON THE ASSESSEE AS REQUIRED UNDER THE ACT AND IN CASE NO NOTICE IS SERVED ON THE ASSESSEE THEN THE ASSESSMENT, SO FRAMED WILL BE TREATED AS INVALI D. IN THE INSTANT CASE THERE IS NO VALID SERVICE OF THE N OTICE. SMT. SUNITA SINGHAI, BHOPAL VS. ITO, WARD 3(1), BH OPAL, I.T.A.NO. 37/IND/2015 A.Y. 1997-98 7 7 IN VIEW OF THE ABOVE SUBMISSIONS IT IS HUMBLY PRAYE D THAT THE ORDER OF THE LD CIT(A) HOLDING THAT THE NOTICE HAS BEEN VALIDLY SERVED ON THE ASSESSEE IS TOTALLY UNJUSTIFI ED. THE LD CIT(A) HAS REFERRED TO SEC 27 OF THE GENERAL CLA USES ACT AND SEC 114 OF THE EVIDENCE ACT AND REMARKED TH AT IT IS NOT CONTROVERTER THAT THE NOTICE DATED 06.04.199 8 HAS INDEED BEEN RECEIVED PERSONALLY ON THE HUSBAND OF T HE APPELLANT AT THE ADDRESS GIVEN BY THE APPELLANT HER SELF. THE SAID REMARK IS TOTALLY WITHOUT ANY BASIS AND CO NTRARY TO THE FACTS. IT WAS CLEARLY SUBMITTED BEFORE THE L D CIT(A) THAT THE DIVORCE HAS TAKEN PLACE IN THE YEAR 1993. EVEN THEN THE LD CIT(A) HAS REMARKED THAT THE NOTICE IS SERVED ON THE HUSBAND. IT IS HUMBLY SUBMITTED THAT THE SAI D NOTICE WAS NEVER RECEIVED BY ANYONE AT THE ADDRESS GIVEN BY THE ASSESSEE. THERE IS NO REPORT OF THE INSPECTO R STATING THAT THE NOTICE HAS BEEN SERVED AT THE ADDRESS OF T HE ASSESSEE. IT IS IMPRACTICAL ALLEGATION THAT THE EX- HUSBAND RECEIVED THE NOTICE AT THE ADDRESS OF THE ASSESSEE. THE ALLEGATION ABOUT THE SERVICE OF NOTICE AT THE ADDRE SS OF THE SMT. SUNITA SINGHAI, BHOPAL VS. ITO, WARD 3(1), BH OPAL, I.T.A.NO. 37/IND/2015 A.Y. 1997-98 8 8 ASSESSEE IS WITHOUT ANY BASIS AND FACTUALLY INCORRE CT. IN VIEW OF THE ABOVE IT IS HUMBLY PRAYED THAT THE APPE AL OF THE ASSESSEE MAY PLEASE BE ALLOWED BY HOLDING THAT THE NOTICE U/S 143(2) WAS NOT SERVED AS PER THE PROVISI ON OF THE ACT AND AS SUCH THE ASSESSMENT SO FRAMED IS ILL EGAL AND BAD IN LAW. 5. LD. DR SUBMITTED BEFORE US THAT IT IS A FACT ON RE CORD THAT NOTICE U/S 143(2) HAS BEEN SERVED ON THE ASSES SEES HUSBAND. THE ASSESSEE HAS PARTICIPATED IN THE PROCE EDINGS AND THE PLEA THAT SERVICE OF NOTICE HAD NO MERITS A ND SERVICE HAS BEEN PROPERLY MADE. THEREFORE, THE LD. CIT(A) I S JUSTIFIED. THE LD. DR HAS RELIED UPON THE DECISION OF JURISDIC TIONAL HIGH COURT IN THE CASE OF CIT VS. PREMIER CAPITAL MARKET & INVESTMENT LIMITED, (2005) 275 ITR 0260 AND ANOTHER DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. SMT.KANTI DEVI GUPTA, (2005) 274 ITR 0526, WHEREIN THE SIMIL AR FACTS WHERE THE NOTICE U/S 148 WAS SERVED ON THE HUSBAND NOT ON THE ASSESSEE PERSONALLY. THE ASSESSEE HAS APPEARED IN PROCEEDINGS BEFORE THE AO AND HON'BLE HIGH COURT HA S HELD SMT. SUNITA SINGHAI, BHOPAL VS. ITO, WARD 3(1), BH OPAL, I.T.A.NO. 37/IND/2015 A.Y. 1997-98 9 9 THAT THE NOTICE WAS VALID. THE LD. DR RELIED UPON T HE ORDER OF THE CIT(A). 6. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PART IES. I HAVE ALSO CONSIDERED THE ORDER OF AO AND APPELLAT E AUTHORITY, WHICH WAS PASSED BY THE LD. CIT(A). I FIND THAT THE ASSESSEE HAS FILED THE RETURN ON 3.4.1997 MENTIONING HER ADD RESS AS 38, HALALPURA, INDORE ROAD, BHOPAL. NOTICE U/S 143( 2) ALONGWITH NOTICE U/S143(2)(1) HAS BEEN ISSUED BY TH E AO ON 6.4.1998 FIXING THE ASSESSEES CASE ON 25.4.1998. B OTH THESE NOTICES HAVE BEEN ADDRESSED TO THE ASSESSEE MENTION ING THE SAME ADDRESS AS GIVEN BY THE ASSESSEE HERSELF IN TH E RETURN AND SERVED THROUGH INSPECTOR. THE NOTICES HAVE BEEN PERSONALLY RECEIVED AT THE SAME ADDRESS BY SHRI VIN OD KUMAR SINGHAI, ASSESSEES HUSBAND, WHO STATED TO BE DIVOR CEE SINCE 1993. DURING THE ENTIRE COURSE OF ASSESSMENT PROCEE DINGS, SHRI YOGENDRA BANSAL, C. A. AND SHRI R. C. JAIN, AD VOCATE, HAVE BEEN APPEARED BEFORE THE AO, SOMETIME ALONGWIT H SHRI VINOD KUMAR SINGHAI ON VARIOUS OCCASIONS. BOTH SHRI YOGENDRA BANSAL AND SHRI R. C. JAIN WERE AUTHORIZED AS SMT. SUNITA SINGHAI, BHOPAL VS. ITO, WARD 3(1), BH OPAL, I.T.A.NO. 37/IND/2015 A.Y. 1997-98 10 10 AUTHORIZED REPRESENTATIVE AS PER ASSESSEES OWN ADM ISSION MADE IN APPEAL AND AS MENTIONED IN THE POWER OF ATT ORNEY SIGNED BY THE ASSESSEE. NO QUESTION REGARDING SERV ICE OF NOTICE ON SHRI VINOD KUMAR SINGHI HAS BEEN RAISED E ITHER BY THE ASSESSEE OR HER A.R. APPOINTED DURING THE ENTIR E COURSE OF ASSESSMENT PROCEEDINGS. ON THE OTHER HAND, IT IS HE LD THAT BY JURISDICTIONAL MADHYA PRADESH HIGH COURT IN THE CAS E OF CIT VS. SMT. KANTI DEVI GUPTA,(SUPRA) AND HON'BLE RAJAS THAN HIGH COURT IN THE CASE OF CIT VS. UTTAMCHAND NAHAR, 295 ITR 403, HAS HELD THAT WHERE A NOTICE HAS BEEN SERVED ON ASS ESSEES HUSBAND AND ASSESSMENT PROCEEDINGS CONDUCTED CONSEQ UENTLY IN PRESENCE OF THE ASSESSEE OR HER DULY APPOINTED A . R., THEN SUCH SERVICE OF NOTICE IS VALID. AS PER GENERAL PRI NCIPLE REGARDING SERVICE OF NOTICE, A NOTICE MAY BE SERVED EITHER PERSONALLY OR BY POST AT PERSONS GIVEN ADDRESS. IF THE PERSON NAMED IN THE NOTICE IS NOT AVAILABLE, SERVICE MAY B E MADE ON MALE MEMBER OF THE FAMILY OF THE PERSON NAMED IN TH E NOTICE. IT IS NOT CONTROVERTED THAT THE NOTICE DATED 6.4.19 98 HAS INDEED BEEN RECEIVED PERSONALLY BY THE HUSBAND OF T HE SMT. SUNITA SINGHAI, BHOPAL VS. ITO, WARD 3(1), BH OPAL, I.T.A.NO. 37/IND/2015 A.Y. 1997-98 11 11 ASSESSEE AT THE ADDRESS GIVEN BY THE ASSESSEE HIMSE LF. UNDER SECTION 27 OF GENERAL CLAUSES ACT AND SECTION 114 O F INDIA EVIDENCE ACT RAISES A PRESUMPTION OF DUE SERVICE AN D PROPER SERVICE IF THE DOCUMENT I.E. NOTICE IN QUESTION SOU GHT TO, BE SERVED BY PROPERLY ADDRESSING AND PREPARING AND POS TING BY REGISTERED POST TO THE ADDRESS AND SUCH PRESUMPTION IS RAISED IRRESPECTIVE OF WHETHER THE ACKNOWLEDGEMENT DUE IS RECEIVED FROM THE ASSESSEE OR NOT. IN THIS CASE, THE NOTICE HAS BEEN SERVED ON HER HUSBAND ON 20.04.1998 AND DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS NEVER BROU GHT TO THE NOTICE OR ON THE RECORD THAT THE ASSESSEE BEING DIVORCEE LADY SINCE 1993 AS PER COURT DECREE, THE SERVICE OF NOTICE ON HER HUSBAND AT THE GIVEN ADDRESS BY THE ASSESSEE HI MSELF. THEREFORE, WE ARE OF THE VIEW THAT THE LD. CIT(A) I S JUSTIFIED IN HOLDING THAT NOTICE U/S 143(2) OF THE ACT IS SERVED TO THE ASSESSEE WAS WITHIN PRESCRIBED LIMIT. 7. I ALSO FIND SUPPORT FROM THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. PR EMIUM SMT. SUNITA SINGHAI, BHOPAL VS. ITO, WARD 3(1), BH OPAL, I.T.A.NO. 37/IND/2015 A.Y. 1997-98 12 12 CAPITAL MARKET & INVESTMENT LIMITED, 275 ITR 260 (M P), WHEREIN IT IS HELD AS UNDER :- THE ASSESSEE NOT HAVING RAISED ANY OBJECTION IN RELATION TO THE LEGALITY OR INVALIDITY OR ILLEGALITY OR IRREGULARITY OF THE IMPUGNED NOTICE, EITHER BEFORE THE AO OR EVEN BEFORE THE CIT(A), THE SAME COULD NOT HAVE BEEN HELD IN FAVOUR OF THE ASSESSEE. SECONDLY, AND ON THE OTHER HAND, THE ASSESSEE HAVING SUBMITTED TO THE JURISDICTION OF THE AO AND WHEN ON APPEARING BEFORE HIM, PARTICIPATING IN THE PROCEEDINGS ON EACH DATE OF HEARING WHICH LASTED FOR MORE THAN ONE YEAR AND RAISING ALL POSSIBLE PLEAS ON THE MERITS OF THE CASE WITH THE ASSISTANCE OF THEIR CHARTERED ACCOUNTANT BUT NOT RAISING ANY OBJECTION AS TO IRREGULARITY IN EFFECTING SMT. SUNITA SINGHAI, BHOPAL VS. ITO, WARD 3(1), BH OPAL, I.T.A.NO. 37/IND/2015 A.Y. 1997-98 13 13 SERVICE OF NOTICE ON THE ASSESSEE, THE ISSUE OF NOTICE CANNOT BE DECIDED IN FAVOUR OF THE ASSESSEE. THIRDLY, EVEN IN APPEAL FILED BEFORE THE CIT(A), CHALLENGING THE ASSESSMENT ORDER, THE ASSESSEE DID NOT RAISE ANY GROUND OF ILLEGALITY OF NOTICE BUT RAISED ALL GROUNDS ON THE MERITS. FOURTHLY, EVEN IN SECOND APPEAL BEFORE THE TRIBUNAL, THE GROUND RELATING TO THE NOTICE WAS NOT RAISED IN THE MEMO OF APPEAL BUT WAS SOUGHT TO BE RAISED BY SEEKING AN AMENDMENT. FIFTHLY, IT WAS THUS A CLEAR CASE OF WAIVER AND/OR ABANDONING OF THE SO-CALLED GROUND WHICH WAS NOT RAISED AT A PROPER TIME AND PLACE. SIXTHLY, THE TRIBUNAL SHOULD HAVE SEEN AND HELD THAT IT WAS NOT A GROUND BASED ON A PURE QUESTION OF LAW BUT IT WAS A GROUND OF MIXED QUESTION OF LAW SMT. SUNITA SINGHAI, BHOPAL VS. ITO, WARD 3(1), BH OPAL, I.T.A.NO. 37/IND/2015 A.Y. 1997-98 14 14 AND FACT. IT WAS REQUIRED TO BE DECIDED EVEN IF RAISED AT A PROPER PLACE ON APPRECIATION OF EVIDENCE LED IN SUPPORT OF SERVICE. A QUESTION WHETHER A PARTICULAR NOTICE IS PROPERLY SERVED OR NOT ON THE ASSESSEE CANNOT BE SAID TO BE A PURE QUESTION OF LAW. IT IS A MIXED QUESTION OF LAW AND FACT. THEREFORE, THE TRIBUNAL SHOULD NOT HAVE ALLOWED THE ASSESSEE TO RAISE THE PLEA OF SERVICE OF NOTICE FOR THE FIRST TIME IN SECOND APPEAL AS ONE OF THE ADDITIONAL GROUNDS FOR CHALLENGING THE ORDER OF ASSESSMENT. IT WAS MUCH MORE SO WHEN THERE WAS NO FACTUAL MATERIAL AVAILABLE FOR RECORDING A FINDING ON MERITS. IT WAS NOT AN ISSUE WHICH COULD BE TAKEN UP FOR DISCUSSION DE NOVO FOR THE FIRST TIME TREATING IT TO BE A QUESTION OF JURISDICTION. IT IS ONE THING TO SAY THAT THE SMT. SUNITA SINGHAI, BHOPAL VS. ITO, WARD 3(1), BH OPAL, I.T.A.NO. 37/IND/2015 A.Y. 1997-98 15 15 QUESTION OF NOTICE IS A JURISDICTIONAL ISSUE BUT IT IS ANOTHER THING TO SAY THAT IN ORDER TO EXAMINE THE ISSUE, IT MUST FIRST BE DEALT WITH ON FACTS IN THE MANNER PROVIDED IN ORDER 5 OF CPC, BY THE AO AND THEN ONE CAN ASSAIL IT IN APPEAL. IT IS THEN ONE MAY SAY THAT IT IS NOT A PURE QUESTION OF FACT BUT A QUESTION OF LAW. SUCH IS NOT THE CASE HERE. SECONDLY, IT IS A CLEAR CASE OF WAIVER/ABANDONMENT OF AN OBJECTION AND HENCE, THE SAME COULD NOT BE ALLOWED TO BE RAISED FOR THE FIRST TIME IN SECOND APPEAL BY THE ASSESSEE. AT BEST IT COULD BE REGARDED AS AN IRREGULARITY IN EFFECTING SERVICE ON THE ASSESSEE OF THE NOTICE BUT NOT AN INVALIDITY AS ALLEGED BY THE ASSESSEE SO AS TO ANNUL THE ENTIRE ASSESSMENT. THE VERY FACT THAT THE ASSESSEE THEREAFTER APPEARED BEFORE THE SMT. SUNITA SINGHAI, BHOPAL VS. ITO, WARD 3(1), BH OPAL, I.T.A.NO. 37/IND/2015 A.Y. 1997-98 16 16 AO AND WENT ON PARTICIPATING IN THE ENTIRE PROCEEDINGS ON THE MERITS FOR MORE THAN ONE YEAR, CLEARLY SHOWS THAT THE 50- CALLED ILLEGALITY/IRREGULARITY DID NOT CAUSE ANY PREJUDICE TO THE ASSESSEE. IN OTHER WORDS, THE ASSESSEE WAS AFFORDED FULLEST OPPORTUNITY TO PARTICIPATE IN THE PROCEEDINGS. THERE IS NOTHING ON RECORD FILED BY THE ASSESSEE IN REBUTTAL TO SHOW THAT WHAT IS MENTIONED IN THE REPORT OF P.S. IS INCORRECT. SECONDLY, BY THE VERY FACT THAT THE ASSESSEE APPEARED BEFORE THE AO THEREAFTER PURSUANT TO THE NOTICES ISSUED UNDER S. 142( 1), THE SO-CALLED OBJECTION REGARDING EFFECTING SERVICE BY AFFIXTURE ON THE ASSESSEE LOSES ITS SIGNIFICANCE. SERVICE OF NOTICE BEING PROPER, THE ASSESSMENT MADE BY THE AO IS LEGAL AND VALID. APPEAL (TRIBUNAL)-ADDITIONAL GROUND- SMT. SUNITA SINGHAI, BHOPAL VS. ITO, WARD 3(1), BH OPAL, I.T.A.NO. 37/IND/2015 A.Y. 1997-98 17 17 CHALLENGE TO VALIDITY OF SERVICE OF NOTICE- ASSESSEE HAVING SUBMITTED TO THE JURISDICTION OF THE AO AND PARTICIPATED IN THE PROCEEDINGS ON EACH DATE OF HEARING RAISING ALL POSSIBLE PLEAS ON MERITS OF THE CASE, TRIBUNAL SHOULD NOT HAVE ALLOWED THE ASSESSEE TO RAISE THE PLEA OF INVALIDITY OF SERVICE OF NOTICE UNDER S. 143(2) AS AN ADDITIONAL GROUND FOR CHALLENGING THE ORDER OF ASSESSMENT-SERVICE OF NOTICE BEING PROPER, ASSESSMENT MADE BY THE AO WAS LEGAL AND VALID. 8. SIMILARLY, I ALSO GET SUPPORT FROM THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. SM T.KANTI DEVI GUPTA, 274 ITR 526, WHEREIN IT IS HELD AS UNDER :- REASSESSMENT WAS NOT INVALID ON THE GROUND THAT THE NOTICE U/S 148 WAS SERVED ON ASSESSEE HUSBAND AND NOT ON ASSESSEE PERSONALLY, AS THE ASSESSEE HAD SMT. SUNITA SINGHAI, BHOPAL VS. ITO, WARD 3(1), BH OPAL, I.T.A.NO. 37/IND/2015 A.Y. 1997-98 18 18 APPEARED IN THE PROCEEDING BEFORE THE AO ; ORDERS O F APPELLATE AUTHORITIES ARE SET ASIDE AND THE CIT(A) IS DIRECTED TO DEAL WITH THE MATTER ON MERITS AND DISPOSE OF THE SAME TAKING INTO CONSIDERATION THE F ACT SITUATION. 9. I, RESPECTFULLY FOLLOWING THE ABOVE DECISIONS OF HO N'BLE JURISDICTIONAL HIGH COURT, DISMISS THE APPEAL OF TH E ASSESSEE. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 22 ND DECEMBER, 2015. SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 22 ND DECEMBER, 2015. CPU* 3.12.