ITO, V. Sri Suresh Kumar Seetlani, Agra

ITA 467/AGR/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6997 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-05-2011
• Assessment Year: 1999-2000
• Appeal Filed On: 09-12-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Assessee Lawyers: L C VALECHA
• Keywords: Gift; Income from undisclosed sources; Assessment record; Set aside
• Section: 142(1); 133(6); 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 467/AGRA/2009 ASSTT. YEAR : 1999-2000 INCOME-TAX OFFICER, VS. SRI SURESH KUMAR SHEETL ANI, 1(3), AGRA. 2-RISHI MARG, SHAHGANJ, AGRA. (PAN : ADBPS 5627 B) C.O. NO.12/AGRA/2010 (IN ITA NO. 467/AGRA/2009) ASSTT. YEAR : 1999-2000 SRI SURESH KUMAR SHEETLANI, VS. INCOME-TAX OFFIC ER, 2-RISHI MARG, SHAHGANJ, AGRA. 1(3), AGRA. (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI A.K. SHARMA, JR. D.R. FOR ASSESSEE : SHRI L.C. VALECHA, A.R. ORDER PER H.S. SIDHU, JM: THE APPEAL HAS BEEN FILED BY THE REVENUE AND THE CROSS OBJECTION HAS BEEN FILED BY ASSESSEE AGAINST THE ORDER DATED 09.09.2009 OF CIT( A), AGRA. THE GROUNDS RAISED IN REVENUES APPEAL READ AS UNDER : 1. THAT THE CIT(APPEALS)-I, AGRA HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN CANCELING THE ASSESSMENT ORDER PASSED U/S. 144 OF THE ACT AND FAILED TO APPRECIATE THE FACT THAT THE NOTICE U/S. 148 WAS SE NT BY POST ON THE LAST KNOWN ADDRESS WHICH WAS ALSO RECORDED IN THE BANK ACCOUNT NO.10309 MAINTAINED BY THE ASSESSEE WITH CANARA BANK, SME BRANCH, AGRA TIL L 02.11.2006. 1(A). BY DOING SO THE CIT(A)-I, AGRA HAS ALSO FAIL ED TO APPRECIATE THAT ALL THE NOTICES ISSUED THEREAFTER WERE ALSO ISSUED AT T HE SAME ADDRESS AND WHICH WERE ALSO SERVED PERSONALLY. 1(B). BY DOING SO, THE CIT(A)-1, AGRA HAS ALSO FAI LED TO APPRECIATE THAT EVEN AFTER ISSUANCE OF NOTICES AT 109, NORTH IDGAH COLONY, AGRA, HE NEVER OBJECTED 2 THE SAME NOR HE FILED ANY EVIDENCE THAT HE HAS NO A NY CONNECTION WITH THE AFORESAID ADDRESS. 1(C). BY DOING SO, THE CIT(A)-1, AGRA HAS ALSO FAI LED TO APPRECIATE THAT THE NOTICE AT THE LAST KNOWN ADDRESS IS A VALID SERVICE . 2. THAT THE ORDER OF CIT(A)-1, AGRA BEING ERRONEOU S IN LAW AND ON FACTS OF THE CASE BE SET ASIDE AND THAT THE ORDER OF THE A.O . BE RESTORED. 2. THE FACTS RELATING TO THE ISSUE IN DISPUTE ARE T HAT THE ASSESSING OFFICER ISSUED NOTICE DATED 28.03.2006 U/S. 148 OF THE INCOME-TAX ACT, 1961 (HE REINAFTER REFERRED TO AS THE ACT) ON THE ADDRESS, I.E., 109, NORTH IDGAH COLONY, AGRA, AVAIL ABLE AT THE ASSESSEES BANK ACCOUNT NO. 10309 IN CANARA BANK (SSI BRANCH), SANJAY PLACE, AGRA. TH E ASSESSING OFFICER ISSUED THE SAID NOTICE AFTER RECORDING THE REASONS THAT THE ASSESSEE HAS O BTAINED OR CREDITED A SUM OF RS.5,28,183/- AND RS.5,79,424/- FROM M/S. ESSAR PEE ADVERTISING, DELH I WHO HAVE BEEN PROVIDING ENTRIES TO THE BENEFICIARIES BY SHOWING THAT THE TRANSACTION MADE BY THEM IN PURCHASE AND SALE OF SHARES OF CERTAIN COMPANIES, GIFTS FROM CERTAIN PERSONS, WHIC H IN FACT NEVER TOOK PLACE. THE ASSESSEE IS ALSO ONE OF THE BENEFICIARIES FIGURING IN THE LIST SUPPL IED BY THE INVESTIGATION WING, AGRA. SINCE THE TRANSACTIONS OF SHARE TRADING WERE FOUND TO BE BOGU S AND THE ENTIRE AMOUNT CLAIMED TO HAVE BEEN RECEIVED BY THE ASSESSEE BY BANK DRAFT IS THE ASSES SEES INCOME FROM UNDISCLOSED INCOME, WHICH HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTIO N 147 OF THE ACT. AT THE TIME OF PERUSING THE BANK ACCOUNT OF THE ASSESSEE, THE ASSESSING OFFICER ALSO FOUND THAT ONE MORE AMOUNT OF RS.5,15,300/- WAS ALSO DEPOSITED AND HE ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE U/S. 143(2) READ WITH SECTION 142(1) DATED 23.11.2006 REQUIRING TO E XPLAIN AND PROVE THIS AMOUNT ALSO AS THE SAME ALSO APPEARS TO BE OF THE SAME NATURE. THE ASS ESSING OFFICER ALSO ISSUED NOTICE U/S. 142(1) DATED 08.11.2006 TO THE ASSESSEE. IN RESPONSE TO TH E SAME, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE APPEARED AND FILED REPLY CHALLENGING SERVI CE OF NOTICE U/S. 148 AND ALSO REQUESTED TO 3 SUPPLY THE COPY OF REASONS RECORDED WHICH WAS SUPPL IED TO HIM ON 28.11.2006 AND THE CASE WAS ADJOURNED TO 04.12.2006. ON 04.12.2006, NEITHER THE ASSESSEES AUTHORIZED REPRESENTATIVE APPEARED NOR ANY APPLICATION FOR ADJOURNMENT WAS FI LED. THE ASSESSEE HAS ALSO NOT PRODUCED THE SHARE BROKER FOR VERIFICATION OF THE GENUINENESS OF THE TRANSACTION. IN THESE CIRCUMSTANCES, AND DUE TO THE SHORTAGE OF TIME BECAUSE THE CASE WAS BE ING TIME BARRED, THE ASSESSING OFFICER HAD NO ALTERNATIVE BUT TO COMPLETE THE ASSESSMENT EXPARTE U/S. 144 OF THE ACT AND HE FINALLY COMPLETED THE ASSESSMENT IN DISPUTE BY MAKING ADDITION OF RS. 16,22,907/- PLUS 1% COMMISSION AND EXPENSES, TOTALING TO RS.17,91,720/- ON ACCOUNT OF AMOUNT OF FICTITIOUS SALE OF SHARES WHICH HAS BEEN HELD TO BE BOGUS AND UNEXPLAINED INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCES VIDE ASSESSMENT ORDER DATED 05.12.2006 U/S. 144/147 OF T HE ACT. AGGRIEVED BY THE SAME, THE ASSESSEE FILED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORIT Y, WHO VIDE IMPUGNED ORDER DATED 09.09.2009 CANCELLED THE SAID ASSESSMENT ORDER DECLARING THE S AME AS INVALID ON THE GROUND THAT THE NOTICE U/S. 148 OF THE ACT WAS NOT SERVED UPON THE ASSESSE E. THE LEARNED FIRST APPELLATE AUTHORITY HAS NOT ADJUDICATED THE ISSUE OF ADDITIONS MADE BY THE ASSE SSING ON MERITS SINCE THE ASSESSMENT ORDER HAS BEEN CANCELLED BY THE LEARNED FIRST APPELLATE A UTHORITY. NOW, THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER FILED PRESENT APPEAL. 3. AT THE TIME OF HEARING, THE LEARNED DR STATED TH AT THE ASSESSING OFFICER ISSUED NOTICE DATED 28.03.2006 U/S. 148 OF THE ACT AFTER RECORDIN G THE REASONS WHICH IS ON THE BASIS OF INFORMATION RECEIVED FROM ADDITIONAL DIT (INV.), AG RA/CAPITAL GAIN/2004-05 DATED 14.03.2005. HE FURTHER, STATED THAT THE NOTICE U/S. 148 DATED 2 8.03.2006 WAS SENT TO THE ASSESSEE BY SPEED POST ON THE LAST KNOWN ADDRESS WHICH WAS AVAILABLE IN TH E BANK ACCOUNT NO. 10309 MAINTAINED BY THE ASSESSEE IN CANARA BANK (SSI BRANCH), SANJAY PLACE, AGRA TILL 02.11.2006, WHICH HAS NOT COME 4 BACK TO THE DEPARTMENT SERVED OR UN-SERVED TILL DAT E, WHICH IS DEEMED TO BE A VALID SERVICE, BUT THE LEARNED FIRST APPELLATE AUTHORITY HAS WRONGLY C ANCELLED THE ASSESSMENT ORDER BY HOLDING THAT THE NOTICE U/S. 148 OF THE ACT WAS NOT SERVED UPON THE ASSESSEE. HE FURTHER STATED THAT LEARNED FIRST APPELLATE AUTHORITY HAS NOT ADJUDICATED / DEC IDED ADDITIONS ON MERITS. HE REQUESTED THAT THE APPEAL FILED BY THE DEPARTMENT MAY BE ACCEPTED AND THE FINDING GIVEN BY THE LEARNED FIRST APPELLATE AUTHORITY AGAINST THE DEPARTMENT DECLARIN G THE NOTICE U/S. 148 AS INVALID, BE CANCELLED AND THE LEARNED FIRST APPELLATE AUTHORITY MAY BE DI RECTED TO DECIDE THE CASE OF THE ASSESSEE ON MERIT. HE HAS ALSO HANDED OVER THE ASSESSMENT RECOR D TO THE BENCH FOR PERUSAL. 4. ON THE CONTRARY, THE LD. COUNSEL FOR THE ASSESSE E RELIED UPON THE ORDER PASSED BY THE LEARNED FIRST APPELLATE AUTHORITY. HE STATED THAT N OTICE U/S. 148 DATED 28.03.2006 ISSUED BY THE ASSESSING OFFICER AT THE WRONG ADDRESS OF THE ASSES SEE. HE FURTHER STATED THAT THE ASSESSEE IS LIVING AT 2, RISHI MARG, SHAHGANJ, AGRA FROM LAST M ANY YEARS. HE FURTHER STATED THAT THE ASSESSEE IS ALSO FILING RETURN FOR THE LAST MANY YEARS AND C ORRECT ADDRESS IS ALSO AVAILABLE WITH THE DEPARTMENT, BUT THE DEPARTMENT HAS NOT ISSUED ANY N OTICE ON CORRECT ADDRESS OF THE ASSESSEE. THEREFORE, THE LEARNED FIRST APPELLATE AUTHORITY HA S RIGHTLY HELD THAT THE NOTICE U/S. 148 OF THE ACT HAS NOT BEEN SERVED UPON THE ASSESSEE. LASTLY, ON A SKING FROM THE BENCH WHETHER THE ADDRESS MENTIONED IN THE NOTICE ISSUED BY THE ASSESSING OFF ICER U/S. 148 OF THE ACT HAS BEEN GIVEN BY THE ASSESSEE TO THE BANK OR NOT WHILE OPENING THE ACCOU NT, THE LD. COUNSEL FOR THE ASSESSEE ADMITTED THESE FACTS. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE O RDERS PASSED BY THE REVENUE AUTHORITIES ESPECIALLY THE ASSESSMENT RECORDS PRODUCED BY THE L EARNED DR. IT IS A MATTER OF RECORD THAT THE 5 ASSESSING OFFICER REOPENED THE ASSESSMENT OF THE AS SESSEE BY ISSUING A NOTICE DATED 28.03.2006 U/S. 148 OF THE ACT. THE ASSESSING OFFICER ALSO REC ORDED THE REASONS BEFORE ISSUING THE NOTICE U/S. 148 OF THE ACT. THE REASONS RECORDED BY THE ASSESSI NG OFFICER ARE BASED UPON THE INFORMATION RECEIVED FROM THE JOINT DIT (INV.), AGRA REGARDING BOGUS ENTRY OF LONG TERM CAPITAL GAIN/SHORT TERM CAPITAL GAIN AND BOGUS GIFT. ON ENQUIRY, IT HA S BEEN FOUND THAT THE BANK ACCOUNT FROM WHICH MONEY HAS BEEN TRANSFERRED FROM VARIOUS BENEFICIARI ES HAD BEEN OPERATED BY CERTAIN STOCK BROKERS, WHO HAVE BEEN PROVIDING ENTRIES TO THE BEN EFICIARIES BY SHOWING THEM AS TRANSACTION MADE BY THEM IN PURCHASE AND SALE OF SHARES OF CERT AIN COMPANIES GIFTS FROM CERTAIN PERSONS, WHICH IN FACT NEVER TOOK PLACE. THE ASSESSEE IS ALS O ONE OF THE BENEFICIARIES FIGURING IN THE LIST SUPPLIED BY THE ADDL. DIT (INV.), AGRA. THE AMOUNT IN DISPUTE HAS BEEN REMITTED TO THE ASSESSEE FROM M/S. ESSAR PEE ADVERTISING, DELHI AND THE SAME IS CREDITED IN THE BANK ACCOUNT NO. 10309 OF THE ASSESSEE IN CANARA BANK (SSI BRANCH), SANJAY PLACE, AGRA ON 06.06.1998. ON ENQUIRY, IT HAS BEEN FOUND THAT THESE TRANSACTIONS ARE BOGUS AN D ENTIRE AMOUNT OF THE SAME CLAIMED TO HAVE BEEN RECEIVED BY THE ASSESSEE BY THE BANK DRAFT IS THE ASSESSEES INCOME FROM UNDISCLOSED SOURCES WHICH HAD ESCAPED ASSESSMENT WITHIN THE MEA NING OF SECTION 147 OF THE ACT. THE ASSESSING OFFICER ISSUED NOTICE DATED 28.03.2006 OF THE ACT TO THE ASSESSEE ON THE ADDRESS GIVEN IN THE BANK ACCOUNT, I.E., 109, NORTH IDGAH COLONY, AGRA BY SPEED POST ON 31.03.2006. THE INCOME-TAX OFFICER 1(3), AGRA INFORMED TO THE LEARN ED DR ABOUT THESE FACTS IN WRITING VIDE HIS LETTER DATED 27.05.2011 WHICH WAS CONVEYED TO THIS BENCH BY THE LEARNED DR ON 27.05.2011 STATING THESE FACTS. THEY HAVE ALSO SUPPLIED PHOTOC OPY OF THE DISPATCH REGISTER SHOWING THE ENTRY AT SL. NO. 4120 ON 30.03.2006 AND SENT BY SPEED POS T ON 31.03.2006 AT THE ASSESSEES ADDRESS, I.E., 109, NORTH IDGAH COLONY, AGRA. WE HAVE PERUSE D THE SAME. AS PER RECORD, THE ASSESSING OFFICER HAS ALSO WRITTEN A LETTER DATED 09.11.2006 TO THE CHIEF MANAGER/BRANCH MANAGER, CANARA 6 BANK (SSI BRANCH), SANJAY PLACE, AGRA REGARDING SUP PLY OF INFORMATION U/S. 133(6) OF THE ACT IN THE CASE OF THE ASSESSEE AND REQUESTED HIM TO SUPPL Y THE COPY OF STATEMENT OF ACCOUNT OF ASSESSEE MENTIONED ABOVE. THE DEPARTMENT HAS ALSO PRODUCED A COPY OF STATEMENT OF THE ASSESSSEES ACCOUNT IN WHICH THE ENTRIES IN DISPUTE HAVE BEEN M ADE. WE HAVE ALSO PERUSED THE RECORD AND FOUND THAT FOLLOWING ADDRESS HAS BEEN GIVEN BY ASSE SSEE TO THE BANK : MR. SURESH KUMAR SHEETLANI, 109, NORTH VIJAY NAGAR COLONY, AGRA. THE ASSESSING OFFICER ISSUED A NOTICE DATED 28.03.2 006 BY SPEED POST ON THE SAID ADDRESS WHICH WAS AVAILABLE WITH HIM. THE ASSESSING OFFICER ALSO FOUND FROM THE BANK ACCOUNT REGARDING THE SUM OF RS.5,15,300/- AND ISSUED SHOW CAUSE NOTICE T O THE ASSESSEE U/S. 143(2) READ WITH SECTION 142(1) DATED 23.11.206 REQUIRING THE ASSESSEE TO EX PLAIN AND PROVE THIS AMOUNT, AS THE SAME ALSO APPEARED TO BE OF THE SAME NATURE AS DISCUSSED ABOV E. THE ASSESSING OFFICER ALSO ISSUED NOTICE U/S. 142(1) DATED 08.11.2006 TO THE ASSESSEE. IN RE SPONSE TO THE SAME, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE APPEARED AND FILED R EPLY CHALLENGING SERVICE OF NOTICE U/S. 148 AND ALSO REQUESTED TO SUPPLY THE COPY OF REASONS RECORD ED WHICH WAS SUPPLIED TO HIM ON 28.11.2006 AND THE CASE WAS ADJOURNED TO 04.12.2006. AFTER THA T THE ASSESSEE REMAINED NON-COOPERATIVE WITH THE ASSESSING OFFICER AND LASTLY, THE ASSESSING OFF ICER COMPLETED THE ASSESSMENT U/S. 144 OF THE ACT ON 05.12.2006 BY MAKING THE ADDITIONS IN DISPUT E. THE LEARNED FIRST APPELLATE AUTHORITY ACCEPTED THE APPEAL OF THE ASSESSEE AND CANCELLED T HE ASSESSMENT ORDER DATED 05.12.2006 BY HOLDING THAT THE NOTICE U/S. 148 DATED 28.03.2006 W AS NOT SERVED UPON THE ASSESSEE AND THE ASSESSMENT ORDER IS NOT SUSTAINABLE IN THE EYE OF L AW. THE FINDING GIVEN BY THE LEARNED FIRST APPELLATE AUTHORITY AT PAGE NO. 15 AND 16 PARA 2.8 AND 3 IS REPRODUCED AS UNDER : 7 2.8. I HAVE CONSIDERED THE FACTS STATED IN THE ASS ESSMENT ORDER, THE REMAND REPORTS OF THE AO, THE WRITTEN ARGUMENTS AND REJOIN DERS TO THE REMAND REPORTS FILED BY THE APPELLANT. FROM THE RECORDS AND ENQUIR IES CONDUCTED BY THE AO AS PER DIRECTIONS ISSUED U/S. 250(4) OF THE ACT, IT IS EVIDENT THAT NOTICE U/S. 148 OF THE ACT WAS NOT SERVED UPON THE APPELLANT. IN THIS CONT EXT, THE CALCUTTA HIGH COURT HELD THAT WHERE A NOTICE UNDER THE IT ACT IS SERVE D BY REGISTERED POST, THE SERVICE MUST BE DEEMED TO BE EFFECTED IF THE NOTICE WAS PRO PERLY ADDRESSED, PREPARED AND POSTED BY REGISTERED POST. 28 ITR 684. IN THE PRE SENT CASE, THE ADDRESS HAS BEEN FOUND TO BE ERRONEOUS. HENCE THE SERVICE OF N OTICE CANNOT BE DEEMED TO HAVE BEEN EFFECTED. IN THE CASE OF VENKAT NAICKEN TRUST VS. ITO 242 ITR 141 (MAD), THE HONBLE HIGH COURT HELD THAT WHERE THE ASSESSEE PLEADED THAT NOTICE WAS NOT SER VED, THE ONUS WAS ON THE REVENUE TO SUBSTANTIATE THEIR CASE THAT ASSESSE E WAS SERVED WITH PROPER NOTICES. SERVICE OF NOTICE IS A STATUTORY REQUIREMENT U/S. 1 48(1) OF THE ACT TO ASSUME VALID JURISDICTION. THEREFORE, IN THE FACT AND CIRCUMSTAN CES OF THE CASE, SINCE THE SERVICE OF NOTICE IS NOT PROVED, ASSESSMENT PROCEEDINGS CON DUCTED IN CONSEQUENCE OF SUCH NOTICE IS RENDERED INVALID. THE HONBLE ALLAHABAD H IGH COURT HAS HELD AS UNDER :- THE NOTICE IN QUESTION WAS NOT SERVED ON ALL THE A DULT MEMBERS OF THE FAMILY, AS REQUIRED UNDER SECTION 283(I) OF THE ACT . THIS MISTAKE GOES TO THE VERY ROOT OF THE MATTER. IT IS FAIRLY SETTLED T HAT AN ASSESSING AUTHORITY GETS JURISDICTION TO REOPEN A CONCLUDED ASSESSMENT ONLY AFTER SERVING A VALID NOTICE ON THE ASSESSEE. A NOTICE CONTEMPLATED UNDER SECTION 148 OF THE ACT IS A JURISDICTIONAL NOTICE AND IS NOT CURAB LE UNDER SECTION 292B OF THE ACT, IF IT WAS NOT SERVED, IN ACCORDANCE WITH T HE PROVISIONS OF THE ACT. IN VIEW OF THE RATIO OF THE AFORESAID DECISION, I F IND THAT THE ASSESSMENT ORDER PASSED U/S. 144 OF THE I.T. ACT IS NOT SUSTAINABLE IN LAW AND HENCE CANCELLED. 3. GROUND NOS. 2 & 3 : SINCE THE ASSESSMENT ORDER H AS BEEN HELD TO BE INVALID HEREINABOVE, ADJUDICATION OF THE REMAINING GROUNDS PERTAINING TO VARIOUS ADDITIONS IS NOT CONSIDERED NECESSARY. 6. AFTER GOING THROUGH THE AFORESAID FINDING GIVEN BY THE LEARNED FIRST APPELLATE AUTHORITY, WE ARE OF THE CONSIDERED OPINION THAT THE LEARNED F IRST APPELLATE AUTHORITY HAS NOT THOROUGHLY GONE THROUGH THE JUDGMENT DELIVERED BY THE HONBLE CALCUTTA HIGH COURT REPORTED IN 28 ITR 8 682. HONBLE CALCUTTA HIGH COURT HAS HELD THAT SERV ICE MUST BE DEEMED TO BE EFFECTED IF THE NOTICE WAS PROPERLY ADDRESSED, PREPARED AND POSTED BY REGISTERED POST. IN THE PRESENT CASE, THE LEARNED DR INFORMED TO THIS BENCH VIDE HIS LETTER D ATED 27.5.2011 ON THE BASIS OF A LETTER DATED 27.5.2011 WRITTEN TO HIM BY THE INCOME-TAX OFFICER 1(3), AGRA STATING THEREIN THAT A NOTICE U/S. 148 OF THE ACT DATED 28.03.2006 WAS DULY ENTERED AT SL. NO.4120 ON 30.03.2006 IN THE OFFICE DISPATCH REGISTER AND SENT BY SPEED POST ON 31.03.2 006 ON THE ADDRESS, 109 NORTH IDGAH COLONY, AGRA. HE HAS ALSO ATTACHED A PHOTO COPY OF DISPATCH REGISTER TO PROVE THIS VERSION. 7. AFTER PERUSING THE ASSESSMENT RECORD, WE ARE OF THE CONSIDERED OPINION THAT THE NOTICE DATED 28.03.2006 U/S. 148 OF THE ACT ISSUED TO THE ASSESSEE ON THE ADDRESS AVAILABLE WITH THE CANARA BANK (SSI BRANCH) SANJAY PLACE, AGRA BY SPEE D POST IS NOT RECEIVED BACK SERVED OR UN- SERVED FROM THE ASSESSEES SIDE. THE LD. COUNSEL FO R THE ASSESSEE ALSO ADMITTED DURING THE COURSE OF HEARING THAT THE ADDRESS GIVEN TO THE BANK, I.E. , 109, NORTH IDGAH COLONY, AGRA IS THE ADDRESS OF THE ASSESSEE FOR SOMETIME. KEEPING IN VIEW THE F ACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE ARE OF THE CONSIDERED OPINION THAT THE NOTICE DA TED 28.03.2006 HAS BEEN SENT TO THE ASSESSEE ON THE ADDRESS AVAILABLE WITH THE DEPARTMENT THROUG H SPEED POST. IT IS ALSO NOT DENIED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE HAS NOT EVER RESIDED AT THE ADDRESS MENTIONED IN THE BANK RECORD. THEREFORE, NOTICE U/S. 148 OF THE ACT ISSUED TO THE ASSESSEE BY SPEED POST WHICH HAS NOT BEEN RECEIVED BACK BY THE DEPARTMENT UN-SERVED IS DEEMED TO BE VALID SERVICE IN THE EYE OF LAW AS HELD BY THE HONBLE CALCUTTA HIGH COURT IN T HE CASE REPORTED IN 28 ITR 684 AND THE LEARNED FIRST APPELLATE AUTHORITY HAS WRONGLY HELD THAT SUCH SERVICE OF NOTICE CANNOT BE DEEMED TO HAVE BEEN EFFECTED AND HAS WRONGLY CANCELLED THE AS SESSMENT ORDER PASSED U/S. 144/147 OF THE ACT DATED 05.12.2006. WE CANCEL THE SAME. 9 8. AS ADMITTED BY BOTH THE PARTIES THAT THE LEARNED FIRST APPELLATE AUTHORITY HAS NOT ADJUDICATED / DECIDED THE ADDITION ON MERITS, IN TH E INTEREST OF JUSTICE WE ARE DIRECTING THE LEARNED FIRST APPELLATE AUTHORITY TO ADJUDICATE / DECIDE TH E SAME ON MERITS AFTER HEARING THE PARTIES. THEREFORE, THE APPEAL FILED BY THE REVENUE IS PARTL Y ALLOWED FOR STATISTICAL PURPOSES. 9. AS REGARDS TO THE CROSS-OBJECTION, KEEPING IN VI EW OF THE ORDER PASSED IN REVENUES APPEAL, THE CROSS OBJECTION BECOMES INFRUCTUOUS AND THE SAME IS DISMISSED. 10. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND THE CROSS-OBJECTION FILED BY THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 17.06.2011. SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17 TH JUNE, 2011 *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY