ACIT, New Delhi V. Shri Dhanesh Kalra, New Delhi

ITA 4434/DEL/2009

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0161 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-03-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 20-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K RAVI RAMACHANDRAN
• Keywords: Corroborative evidences; Assessment record
• Section: 27; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI K.D. RANJAN ITA NO. 4434/DEL/09 ASSTT. YR: 2005-06 ACIT, CIRCLE 22(1), VS. SHRI DHANESH KALRA, NEW DELHI. GA-41, PUL PREHLAD PUR, NEW DELHI. PAN/ GIR NO. AAQPK9082Q ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SH. K. RAVI RAMA CHANDRAN SR. DR RESPONDENT BY : SHRI VINEET GARG CA O R D E R PER R.P. TOLANI, J.M : THIS IS REVENUES APPEAL AGAINST THE ORDER OF THE LEARNED CIT(A) DATED 7-9-2009 RELATING TO THE ASSESSMENT YEAR 2005 -06. FOLLOWING GROUNDS ARE RAISED. 1. ON THE FACTS AND ON THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS IN ALLOWIN G THE ASSESSEES APPEAL OBSERVING THAT THE VERY ASSUMPTIO N OF JURISDICTION HAS BEEN HELD TO BE INVALID. 2. ON THE FACTS AND ON THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS THAT THE N OTICE U/S 143(2) OF THE I.T. ACT, 1961 WAS ISSUED WITHIN THE STATUTORY TIME LIMIT OF 12 MONTHS FROM THE DATE OF FILING THE RETURN AND THE ASSESSEE COMPLIED BY ATTENDING THE PROCEEDINGS. 3. ON THE FACTS AND ON THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS THAT THE P ROVISIONS OF SECTION 292BB WOULD NOT BE APPLICABLE FROM RETROSPE CTIVE EFFECT. 2 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE O F HEARING OF THE APPEAL. 2. LEARNED DR ON EARLIER OCCASION HAD REQUESTED TO FILE DEPARTMENTAL RECORD, WHICH IS PRODUCED. HOWEVER, LEARNED DR COUL D NOT FIND ANY PROOF OF SERVICE OF NOTICE U/S 148 ON THE RECORD. IT IS PLEA DED THAT THOUGH PROOF OF SERVICE IS NOT ON THE RECORD, THE EXISTENCE OF NOTI CE U/S 143(2) IS SUFFICIENT TO COME TO THE CONCLUSION THAT THE NOTICE WAS SERVED. 3. LEARNED COUNSEL FOR THE ASSESSEE CONTENDS THAT D URING THE COURSE OF ASSESSMENT ITSELF IT WAS BROUGHT TO THE NOTICE OF A O THAT 143(2) NOTICE WAS NOT SERVED ON THE ASSESSEE. REFERENCE IS INVITED TO FOLLOWING PARA OF THE ORDER OF CIT(A). 11. IT SHALL BE CLEAR FROM THE ABOVE THAT AS PER T HE PROVISO TO SUB-SECTION (2) OF SECTION 143, IT IS MANDATORY FOR THE LEARNED ASSESSING OFFICER TO ISSUE THE NOTICE UNDER SECTION 143(2) AND SERVE THE SAME WITHIN 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN IS FILED. EVEN THOUGH, VIDE LETTER DATED 5.1.2009, I HAD REQUESTED FOR THE ASSESSMENT RECORD , THE LEARNED ASSESSING OFFICER INADVERTENTLY DID NOT SUBMIT THE SAME, FOR WHICH I HAD TO MAKE ANOTHER REQUISITION VIDE LETTER NO. 171 DATED 4.9.2009. THE ASSESSMENT RECORD HAS BEEN PERU SED. IT IS OBSERVED, THAT FOR THE IMPUGNED YEAR, THE ASSESSEE HAD FILED RETURN OF INCOME ON 31.10.2005, VIDE ACKNOWLEDGEMEN T NO. 2241002958, IN THE OFFICE OF ITO, WARD 22(1), NEW DELHI. THUS, THE LEARNED ASSESSING OFFICER COULD HAVE ISSU ED THE NOTICE UNDER SECTION SUB-SECTION (2) OF SECTION 143 BY 31-10- 2006. THE IMPUGNED ORDER MENTIONS THAT THE NOTICE U NDER SECTION 143(2) WAS ISSUED ON 21-6-2006. PAGE NO. 1 OF THE ORDER SHEET (HAS THREE PAGES) ALSO SUGGEST THAT THE NOTIC E UNDER SECTION 143(2) WAS ISSUED ON 21.6.2006, FIXING THE DATE FOR HEARING FOR 10-7-2006. I HAVE PERUSED THE CORRESPONDENCE SIDE O F THE ASSESSMENT FOLDER. IT HAS 304 PAGES. PAGES 1 TO 20 IS THE RETURN OF INCOME. THE FOLLOWING PAGES ARE PAGES 21 & 22, W HICH IS A QUESTIONNAIRE DATED 9.2.2007. THERE IS NO NOTICE ON THE 3 CORRESPONDENCE SIDE WHICH WAS ALLEGEDLY ISSUED ON 2 1.6.2006, AS MENTIONED IN THE IMPUGNED ORDER AND ALSO IN THE REMAND REPORT FILED BY THE LEARNED ASSESSING OFFICER. 3.1. IT IS FURTHER ARGUED THAT CIT(A) CALLED FOR A REMAND REPORT, WHICH DID NOT DISCLOSE ANY FACT OF SERVICE AND ALSO VERIFIED THE PROCEEDINGS SHEET BEFORE AO AND HELD THAT THERE WAS NO REFERENCE TO A NY 143(2) NOTICE OR COMPLIANCE THEREOF, BY FOLLOWING OBSERVATIONS: 13. I HAVE ANALYSED THIS ASPECT FROM ANOTHER ANGLE . THERE IS A POSSIBILITY THAT THE SAID NOTICE HAS GOT MISPLACED. AS SUCH, IN THE CORRESPONDENCE TO AND FROM BETWEEN THE DEPARTME NT AND THE ASSESSEE I HAVE ENDEAVOURED TO ASCERTAIN WHETHE R ANY REFERENCE WAS MADE TO THE OSTENSIBLE NOTICE DATED 2 1.6.2006. THE QUESTIONNAIRE DATED 9.2.2007, DOES NOT REFER TO ANY NOTICE DATED 21.2.2006. SIMILARLY NOTICE DATED 27.2.2007 ( PAGE NO. 24 ALSO DOES NOT REFER TO THE NOTICE DATED 21.2.2006). SIMILARLY SUBSEQUENT NOTICE ISSUED ALSO DOES NOT HAVE ANY SUC H REFERENCE. ANOTHER NOTICE DATED 22.6.2007 (PAGE NO. 28) ALSO D OES NOT MAKING ANY REFERENCE TO ANY NOTICE ISSUED UNDER SEC TION 143(2) DATED 21.6.2006. SIMILARLY, I HAVE VETTED THE OTHER NOTICES ON RECORD. THE REPLIES FILED BY THE ASSESSEE HAVE ALSO BEEN VETTED BY ME TO TRACE ANY SUCH REFERENCE OF NOTICE DATED 2 1.2.2006 ISSUED UNDER SECTION 143(2). THERE IS NO SUCH REFER ENCE. 14. IN OTHER WORDS, IT WOULD BE REASONABLE TO INFER THAT NO NOTICE WAS ISSUED ON 21.6.2006 UNDER SUB-SECTION (2 ) OF SECTION 43. FURTHER, NO NOTICE UNDER SECTION 143(2) WAS ISS UED ON BEFORE 31.10.2006, WHICH WAS STATUTORILY REQUIRED. 15. ASSUMING FOR A MOMENT THAT A NOTICE INDEED HAVE BEEN ISSUED, CONSIDERING THE ORDER SHEET ENTRY (MENTIONE D ABOVE), IT IS IMPERATIVE IN LAW THAT THE SAME HAS TO BE SERVED WITHIN THE STIPULATED TIME. THE ORDER SHEET ENTRY, WHILE IT IN DICATES THE ISSUANCE OF NOTICE, DOES NOT SUGGEST THAT HOW THE S AME WAS SERVED. WS IT SERVED BY SPEED POST/ REGISTERED POST ? OR WAS IT SERVED THROUGH A PROCESS SERVER? OR WAS IT BY AFFIX ATION? SECONDLY, THERE HAS TO BE EVIDENCE OF SERVICE OF NO TICE. THE LEARNED ASSESSING OFFICER AHS RELIED HEAVILY ON THE FOLLOWING DECISIONS:- 4 (I) CC ALAVI HAJI VS. PALAPETTY MUHAMMED (2007) 6 S CC 555; (II) JAGDISH SINGH VS. NATTHI SINGH (1992) 1 SCC 64 7; (III) STATE OF M.P. VS. HIRALA (1996) 7 SCC 523; (IV) V RAJA KUMAR VS. P. SUBBARAMA NAIDU (2004) 8 S CC 774; (V) MAYAVATI VS. CIT & ORS (2009) 19 DTR 183; (VI) HAR CHARAN SINGH VS. SHIV RANI AIR 1981 SC 128 4. 16. THE SUM AND SUBSTANCE OF ALL THE ABOVE DECISION S ARE THE SERVICE SHALL BE DEEMED TO BE EFFECTED BY PROPERLY ADDRESSING, PRE-PAYING AND POSTING BY REGISTERED POST. IN OTHER WORDS, IT WOULD BE SAFE TO STATUTORILY PRESUME UNDER SECTION 27 OF THE GENERAL CLAUSES ACT THAT THE NOTICE HAD BEEN SERVED , IF A NOTICE HAD BEEN ADDRESSED PROPERLY, PROPERLY STAMPED AND S ENT BY REGISTERED POST. HOWEVER, FIRSTLY I CANNOT SEE THE OFFICE COPY OF THE NOTICE ISSUED ON 21.6.2006 TO ASCERTAIN WHETHER THE SAME HAS BEEN CORRECTLY ADDRESSED. NOR DO I FIND ANY EVI DENCE OR EVEN A WHISPER OF EVIDENCE THAT THE NOTICE HAD BEEN SERVED BY POST, OR THROUGH PROCESS SERVER OR THROUGH AFFIXATI ON. THIS EVIDENCE IS NOT AVAILABLE FROM A PERUSAL OF THE ORD ER SHEET OR PAGES 1 TO 304 OF THE CORRESPONDENCE SIDE. 3.2. CIT(A) HELD THAT IN SUCH CIRCUMSTANCES, THE PL EA OF AO THAT SEC. 292BB WILL CURE THE DEFICIENCY WAS NOT CORRECT. HE APPLIED THE RATIO OF DECISION OF ITAT DELHI BENCH IN THE CASE OF NOKIA C ORPORATION VS. DT (INTERNATIONAL TAXATION) (2007) 292 ITR 22 (DEL.), TO COME TO THE CONCLUSION THAT THERE BEING NO PROPER SERVICE OF NOTICE U/S 1 43(2), ASSUMPTION OF JURISDICTION WAS BAD IN LAW. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE RECORD PRODUCED BY THE LEARNED DR CO ULD NOT DEMONSTRATE ANY SERVICE OF NOTICE U/S 143(2). BESIDES, FROM THE ORDER-SHEET ENTRIES, THE OBSERVATIONS OF CIT(A) COULD NOT BE REBUTTED THAT F IRST NOTICE U/S 143(2) WAS 5 ISSUED ON 21-6-2006. IT HAS NOT BEEN DISPUTED THAT THE ORDER-SHEET ENTRY OF 21-6-2006 PURPORTING TO BE SERVICE ON THE ASSESSEE IS BEREFT OF ANY SUPPORTING EVIDENCE. IN VIEW OF THESE OBSERVATIONS, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) WHICH IS TO BE UPH ELD. 5. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 15-3-2011. SD/- SD/- ( K.D. RANJAN ) ( R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 15-3-2011. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR