DCIT, New Delhi V. M/s. Mascomptel (India) Ltd, New Delhi

ITA 4672/DEL/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3791 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 15-06-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 10-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MONGA
• Keywords: Assessment record; Block assessment
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER & SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO. 4672/DEL/2009 ASSESSMENT YEAR: 2006-07 DCIT, VS. MASCOMPTEL (INDIA) LTD., CIRCLE-6(1), ADITYA MEGA MALL, ROOM NO. 413, C.R. BUILDING, SF-4 & SS-11, NEW DELHI. CBD (EAST), KARKARDUMA, NEW DELHI. AAACM4784C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K. MONGA, SR. DR RESPONDENT BY : SH. K. SAMPATH, ADV. ORDER PER C.L. SETHI, J.M. THE REVENUE IS IN APPEAL AGAINST THE ORDER DATED 03 .09.2009 PASSED BY LD. CIT(A) IN THE MATTER OF ASSESSMENT MA DE BY THE ASSESSING OFFICER U/S 144 OF THE INCOME TAX ACT, 19 61 FOR THE A.Y. 2006-07. 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE AS UNDER: - 1. THE ORDER OF THE LD. CIT(APPEALS) IS ERRONEOUS & C ONTRARY TO FACTS AND LAW. ITA NO. 4672/D/2009 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(APPEALS) HAS ERRED IN TREATING THE NOTI CES ISSUED U/S 143(2) AND 115WE(2) OF THE I.T. ACT, 1961 AS IN VALID. 2.1THE LD. CIT(A) IGNORED THE FACT THAT THE NOTICES U/S 143(2) AND 115WE(2) OF THE I.T. ACT, 1961 WERE VALIDLY SERVED AT THE LAST KNOWN ADDRESS OF THE ASSESSEE. 3. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER, OR AMEND ANY GROUNDS OF THE APPEAL RAISED ABOVE AT THE TIME OF T HE HEARING. 3. IN THE GROUNDS OF APPEAL, THE DEPARTMENT HAS TAK EN A STAND THAT THE NOTICE ISSUED U/S 143(2) AND 115WE(2) OF THE AC T WERE VALIDLY SERVED. THE AO COMPLETED THE ASSESSMENT U/S 144 OF THE ACT. THE AO ALSO PASSED AN ORDER U/S 115WF OF THE ACT. THES E ARE TWO SEPARATE ORDERS PASSED BY THE ASSESSING OFFICER. T HE LD. CIT(A) PASSED TWO SEPARATE APPELLATE ORDERS IN TWO SEPARAT E APPEALS ARISING FROM ASSESSMENT ORDER PASSED U/S 144 OF THE ACT AND ORDER PASSED U/S 115WF OF THE ACT RESPECTIVELY. THE DEPARTMENT SHOU LD HAVE FILED TWO SEPARATE APPEALS IN RESPECT OF TWO SEPARATE ORD ERS PASSED BY AO U/S 144 OF THE ACT AND U/S 115WF OF THE ACT. IN TH E GROUND OF APPEAL DEPARTMENT HAS TAKEN BOTH THESE ISSUES TOGET HER. IN THE COURSE OF HEARING OF THIS APPEAL, THIS POSITION WAS POINTED OUT TO THE LD. DEPARTMENTAL REPRESENTATIVE, AND AFTER DISCUSSI ON WITH HIM IT WAS DECIDED TO TREAT THIS PRESENT APPEAL ONLY WITH REFERENCE TO THE ITA NO. 4672/D/2009 3 ASSESSMENT ORDER PASSED U/S 144 OF THE ACT. THE DEP ARTMENT SHALL BE AT LIBERTY TO FILE A SEPARATE APPEAL IN RESPECT OF ORDER PASSED U/S 115WF OF THE ACT IF SO ADVISED. 4. WE, THEREFORE, PROCEED TO DECIDE AS TO WHETHER N OTICE ISSUED U/S 143(2) HAS BEEN VALIDLY SERVED UPON THE ASSESSE E WITHIN THE STIPULATED TIME. 5. THE ASSESSEE FILED ITS RETURN OF INCOME ON 25.11 .2006 SHOWING TOTAL INCOME AT RS. 40,66,790/-. THE RETURN WAS PR OCESSED U/S 143 SUB-SECTION (1) OF THE ACT ON 21.08.2007. THEREAFT ER, THE CASE WAS SELECTED FOR SCRUTINY. AO ISSUED STATUTORY NOTICE U/S 143(2) DATED 11.10.2007 TO THE ASSESSEE AT 44-RAJENDRA BHAWAN, R AJENDRA PLACE, NEW DELHI FIXING THE CASE FOR HEARING ON 24.10.2007 . THE SAME NOTICE ISSUED U/S 143(2) WAS RECEIVED BACK UNDELIVE RED WITH THE REMARK OF THE POSTAL AUTHORITY AS NO SUCH OFFICE I N 44-RAJENDRA BHAWAN, RAJENDRA PLACE, NEW DELHI. THE AO THEREAF TER DEPUTED THE INSPECTOR OF THE OFFICE SHRI AMAR PAL SINGH TO SERVE THE NOTICE PERSONALLY BUT IT WAS REPORTED BY INSPECTOR THAT NO SUCH COMPANY AT THAT ADDRESS EXISTED. THE AO, THEREFORE, SERVED TH E NOTICE BY AFFIXTURE. SUBSEQUENTLY, THE AO GATHERED ANOTHER A DDRESS OF THE ASSESSEE BEING AT 1-GF, AGCR ENCLAVE, KARKARDUMA, D ELHI AND THE ITA NO. 4672/D/2009 4 INSPECTOR WAS DEPUTED TO SERVE THE NOTICE PERSONALL Y AT THIS NEW ADDRESS. HOWEVER, THE FRESH NOTICE AT AGCR ENCLAVE , KARKARDUMA COULD NOT BE SERVED AS NO SUCH COMPANY EXISTED AT T HE ABOVE ADDRESS, NOTICE U/S 143(2) WAS SERVED BY AFFIXTURE AT THAT ADDRESS ALSO. SINCE, NO ONE FOR THE ASSESSEE APPEARED BEFO RE THE AO, THE AO COMPLETED THE ASSESSMENT U/S 144 OF THE ACT VIDE OR DER DATED 19.12.2008. 6. BEING AGGRIEVED, THE ASSESSEE PREFERRED AN APPEA L BEFORE THE LD. CIT(A). 7. BEFORE THE CIT(A), THE ASSESSEE SUBMITTED THAT A SSESSEE WAS ACTUALLY OPERATING AT 1-GF, AGCR ENCLAVE, KARKARKUM A, DELHI UPTO 15.12.2007 AND SHIFTED OFFICE TO ADITYA MEGA MALL, SF-4 & SS-11, CENTRAL BUSINESS DISTRICT (EAST), KARKARDUMA, DELHI . IT WAS FURTHER POINTED OUT BY THE ASSESSEE THAT THE ASSESSEE HAD R ECEIVED NOTICE DATED 1.10.2007 FROM DCIT, CIRCLE-6(1), NEW DELHI R EGARDING SOME TDS/TCS QUERY IN THE COURSE OF PROCESSING THE RETUR N OF INCOME FOR A.Y. 2006-07 WHICH WAS COMPLIED BY THE ASSESSEE ON 28.11.2007. AT THAT TIME, THE ASSESSEE WAS OPERATING FROM ADDRE SS GIVEN IN THE NOTICE OF AO, I.E., AT 1-GF, AGCR ENCLAVE, KARKARDU MA, DELHI. IT WAS FURTHER POINTED OUT THAT IN THE RETURN OF INCOM E FILED BY THE ITA NO. 4672/D/2009 5 ASSESSEE FOR THE YEAR UNDER CONSIDERATION, THE ADDR ESS WAS MENTIONED AT 1-GF, AGCR ENCLAVE, KARKARDUMA, DELHI. THE ASSE SSEE THEN POINTED OUT THAT ASSESSEE HAD ALREADY SHIFTED ITS R EGISTERED OFFICE FROM 44, RAJENDRA BHAWAN, RAJENDRA PLACE, NEW DELHI LONG WAY BACK IN 2001. IT WAS THUS, CONTENDED THAT STATUTOR Y NOTICE U/S 143(2) DATED 11.10.2007 ISSUED AT 44, RAJENDRA BHAWAN, RAJ ENDRA PLACE, NEW DELHI WAS NOT CORRECT, AND SERVICE OF NOTICE BY AFFIXTURE AT THAT ADDRESS WAS NOT IN ACCORDANCE WITH THE FACTS OF THE CASE AND THE PROVISIONS OF LAW CONTAINED IN THAT BEHALF. 8. APART FROM AFFIDAVIT GIVEN BY THE ASSESSEE, THE FOLLOWING DOCUMENTS WERE FURNISHED TO SUPPORT THE ASSESSEES CONTENTION BEFORE THE LD. CIT(A): - (I) COPY OF INTIMATION IN FORM NO. 18 TO ROC (CHA NGE OF REGD. OFFICE ADDRESS). (II) COPY OF LETTER FROM INCOME TAX CIRCLE 6(1)/200 7- 08/139 DATED 01.10.2007 RECEIVED ON 9.10.2007, DEMANDED ORIGINAL TDS CERTIFICATE AND COPY OF COVERING LETTER NO. MCT/AY/0607/001 SUBMITTED ON 11.2007. (III) COPY OF INCOME TAX RETURN ACKNOWLEDGEMENT DAT ED 25.11.2006. (IV) COPY OF AUDIT REPORT, BALANCE SHEET AND PROFI T/LOSS ACCOUNT. (V) COPY OF TAX AUDIT REPORT. ITA NO. 4672/D/2009 6 (VI) COPY OF 56G REPORT. (VII) COPY OF LAST ASSESSMENT ORDER FOR A.Y. 2005-06 PROCESSED U/S 143(3) DATED 30.03.2007. (VIII) COPY OF FIRC RECEIVED AT OUR REGISTERED OFFICE ADDRESS. 9. IN THE LIGHT OF SUBMISSION OF THE ASSESSEE, DOCU MENTS FURNISHED AND FACTS NARRATED BY THE AO IN THE ASSES SMENT ORDER, THE LD. CIT(A) DISCUSSED AND DECIDED THE ISSUE BY OBSER VING AND HOLDING AS UNDER: - 4.1 FROM THE DOCUMENTS FILED BY THE ASSESSEE AND T HE PERUSAL OF THE ASSESSMENT RECORD IT IS CLEAR THAT 44, RAJENDRA BHAWAN, RAJENDRA PLACE ADDRESS WAS NEVER GIVEN IN THE RETURN FILED BY THE ASSESSEE AS IS CLEAR FROM THE RETURN ITSELF AND FURTHER PROV ED FROM THE FACT THAT THE AO HAS HERSELF SENT A LETTER TO THE ASSESSEE COMPANY AT AGCR ENCLAVE ADDRESS ON 1.10.2007 IN CONNECTION WITH THE CLAIMS OF TDS/TCS REQUIRING THE COMPANY TO FILE ORIGINAL CERTIFICATES FOR GETTING CREDIT. THE ASSESSMENT RECORD AND ASSESSING OFFICERS NOTING DATED 13.3.09 CLEARLY SHOWS THAT THE ASSESSEE COMPLIED WITH THIS ON 28.11.2007. THE ASSESSEE COMPANY HAD SHIFTED ITS OPERATION FROM AGCR ENCLAVE TO ADITYA MEGA MALL ON 15.12.2007. THE ASSESSEE HAS BEEN ASSESSED U/S 143(3) FOR ASSESSMENT YEARS 2003-04, 2004-05, 2005-06, SO ITA NO. 4672/D/2009 7 JUST BY DIGGING INTO THE LAST YEARS RECORD, AO COUL D HAVE KNOWN THE CORRECT ADDRESS. THE NOTICES ISSUED FOR THE LAST YEAR, THE ASSESSMENT ORDER, THE DEMAND NOTICE ALL CONTAIN THE ADDRESS AS 1-GF, AGCR ENCLAVE, KARKARDUMA. ONLY IF THE NOTICE HAD BEEN SENT AT THE ADDRESS ON THE RETURN ITSELF THERE WOULD HAVE BEEN NO ISSUE SINCE UP TILL 15.12.2007, THE ASSESSEE WAS OPERATING FROM THERE ITSELF. IT IS SURPRISING TO NOTE THAT THE AO IS ON A LOOK O UT FOR THE ASSESSEE IN ORDER TO SERVE A NOTICE FOR AN ASSESSMENT GETTING BARRED BY LIMITATION AND FROM THE SAME OFFICE A DIFFERENT NOTICE IS BEING SENT TO THE SAME ASSESSEE AT THE CORRECT ADDRESS AND THE ASSESSEE IS COMPLYING WITH THAT. IT IS DIFFICULT T O COMPREHEND THE TOTAL DISCONNECT IN DEALING WITH AN URGENT SITUATION. 4.2 THE LD. COUNSEL HAS BROUGHT THE FOLLOWING CASES OF THE HONBLE DELHI HIGH COURT TO MY NOTICE IN SUPPOR T OF HIS CONTENTION: - CIT VS. DEWAN KRAFT SYSTEM (P) LTD. 165 TAXMAN 139 (DELHI) CIT VS. RAJESH KUMAR SHARMA 165 TAXMAN 488 (DELHI) CIT VS. LUNAR DIAMONDS LTD. 146 TAXMAN 691 (DELHI) 4.3 IN THE CASE OF CIT VS. DEWAN KRAFT SYSTEM (P) LTD., THE FACTS ARE ALMOST SIMILAR TO THE PRESENT C ASE. THE RELEVANT PARA IS REPRODUCED AS UNDER: - ITA NO. 4672/D/2009 8 WE HAVE EXAMINED THE COPIES OF THE NOTICES ISSUED BY THE AO AND FIND THAT THE NOTICE ISSUED AT THE VERY LAST MINUTE. SINCE THE OFFICE OF THE ASSESSEE WAS CLOSED, NO EFFORTS WERE MADE BY THE AO TO FIND OUT THE WHEREABOUTS OF THE ASSESSEE TO SERVE IT BUT A SHORT CUT WAS TAKEN BY THE INSPECTOR WHO RESORTED TO AFFIXATION, WHICH WAS CARRIED OUT IN THE ABSENCE OF ANY INDEPENDENT WITNESS. IT APPEARS TO US THAT THE ENTIRE EXERCISE OF SENDING THE INSPECTOR AND RESORTING TO AFFIXATION WAS CARRIED OUT ONLY TO ENSURE THAT THE CASE DOES NOT BECOME TIME-BARRED, KNOWING FULLY WELL THAT THE NOTICES HAVE BEEN ISSUED AT THE VERY LAST MINUTE AND COULD NOT HAVE BEEN SERVED ON THE ASSESSEE WITHOUT UNDERTAKING SOME OUT OF THE ORDINARY EXERCISE AS HAS BEEN DONE IN THE PRESENT CASE. 5.0 IN THE PRESENT CASE, I AM OF THE OPINION THAT IN VIEW OF THE FACTS ABOVE AND THE CATEGORICAL STAND OF THE ASSESSEE SUPPORTED BY AN AFFIDAVIT THA T HE DID NOT RECEIVE ANY NOTICE, THE BURDEN WAS ON THE AO TO PROVE THAT IT WAS DISPATCHED TO THE CORRECT ADDRESS. IN THIS CASE, IT WAS NOT EVEN DOI NG SOMETHING OUT OF THE ORDINARY, A MERE GLANCE AT THE ADDRESS ON THE RETURN OR LAST YEARS RECORD OR A LITTLE PRESENCE OF MIND WHEN THE ASSESSEE ITA NO. 4672/D/2009 9 RESPONDED TO A TDS VERIFICATION NOTICE COULD HAVE SORTED THE ISSUED. A SUBSEQUENT DISCUSSION WITH THE ASSESSEES COUNSEL BY THE AO LED TO A NOTING DATED 13.3.09 BY THE AO. SHRI ANIL KHANNA, CA & AR ALONG WITH SHRI SANJAY THAKUR AUDITORS ATTENDED. THE ISSUE OF CHANGE OF ADDRESS WAS DISCUSSED WITH THEM. IT HAS BEEN SEEN THAT WHILE SPECIFIC INTIMATION HAS BEEN MADE TO ROC, NSDL WEBSITE AND TAN WEBSITE LINKS, THE SAME WAS NOT COMMUNICATED TO THE DEPARTMENT SEPARATELY. HOWEVER, THERE WAS A COMMUNICATION WITH THE COMPANY AT ITS AGCR, KARKARDUMA ADDRESS IN NOVEMBER, 2007 WHEN TDS CERTIFICATES WERE CALLED FOR TO WHICH THEY RESPONDED. BUT BY THE TIME, SCRUTINY PROCEEDINGS BEGAN IN JUNE, 2008, THE COMPANY HAD SHIFTED OUT TO THE ABOVE ADDRESS AND ITS SUBSEQUENT WHEREABOUTS WERE UNKNOWN TO THE AO. THEY COULD NOT BE TRACED OUT BY THE INSPECTOR DEPUTED FOR THE JOB NOR WAS THE SAME COMMUNICATED TO THE DEPARTMENT. FINALLY ASSESSMENT U/S 144 WAS MADE. 5.2 THERE ARE WHOLE LOT OF GAPS IN THIS NOTING, SINCE TILL THE 15.12.2007, ALL THE NOTICES WERE BEI NG SENT AND AFFIXED AT THE WRONG ADDRESS. IT WAS ONLY ON 26.11.2008 THAT THE INSPECTOR WAS DEPUTED BUT BY THEN THE ASSESSEE HAD IN FACT SHIFTED TO ADITYA ITA NO. 4672/D/2009 10 MEGA MALL DULY INFORMING THE CONCERNED AUTHORITIES. 5.3 IN VIEW OF THE ABOVE, I HOLD THAT SINCE THE NOTICE WAS NEVER SERVED THE ASSESSMENT FRAMED U/S 144 IS INVALID, THEREBY ALLOWING THE 2 ND GROUND OF APPEAL. 10. HENCE, THE DEPARTMENT IS IN APPEAL BEFORE US. 11. WE HAVE HEARD BOTH THE PARTIES AND HAVE GONE TH ROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE ALSO GONE THROUGH THE VARIOUS DOCUMENTS FILED BY THE ASSESSEE. WE HAVE A LSO GONE THROUGH THE ASSESSMENT RECORDS PRODUCED BY THE LD. DR. 12. IN THIS CASE, THE ASSESSEE FILED ITS RETURN OF INCOME OF THE ASSESSMENT YEAR UNDER CONSIDERATION ON 7.12.2006 SH OWING THE ADDRESS AT 1-GF, AGCR ELCAVE, KARKARDUMA, DELHI 1 10092. PRIOR TO THIS PHYSICAL RETURN, THE ASSESSEE FILED E-RETUR N FOR THE ASSESSMENT UNDER CONSIDERATION ON 25.11.2006 VIDE E-ACKNOWLEDG MENT NO. 90149209. IN ORDER TO MAKE ASSESSMENT U/S 143(3) O F THE ACT BY THE AO, THE AO SHOULD HAVE ISSUED NOTICE U/S 143(2) BEF ORE THE EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN WAS FURNISHED. IN THE PRESENT CASE, THE AO SHOULD HAVE THEREFORE, SERVED ITA NO. 4672/D/2009 11 ON THE ASSESSEE THE NOTICE U/S 143(2) ON OR BEFORE 31 ST DAY OF NOVEMBER, 2007, BEING EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH OF NOVEMBER, 2006 IN WHICH THE E-RETURN WAS F ILED BY THE ASSESSEE ON 25.11.2006. IN THE PRESENT CASE, AO SE LECTED THE RETURN FOR SCRUTINY TO COMPLETE THE ASSESSMENT U/S 143(3) OF THE ACT. THE AO, THEREFORE, ISSUED A NOTICE U/S 143(2) ON 11.10. 2007 AT 44, RAJENDRA BHAWAN, RAJENDRA PLACE, NEW DELHI. THIS N OTICE ISSUED U/S 143(2) WAS NOT SERVED UPON THE ASSESSEE BUT RET URNED BACK UNDELIVERED WITH THE POSTAL REMARK THAT NO SUCH OF FICE IN 44, RAJENDRA BHAWAN, RAJENDRA PLACE, NEW DELHI. THE A O THEREFORE, DEPUTED THE INSPECTOR AND PROCESS SERVER TO SERVE T HE NOTICE BY AFFIXTURE. AFFIXTURE OF THIS NOTICE WAS DONE BY PR OCESS SERVER IN THE PRESENCE OF AN INSPECTOR SHRI AMAL PAL SINGH DEPUTE D BY THE AO. IN THE LIGHT OF THESE FACTS, WE HAVE TO SEE AS TO WHET HER NOTICE ISSUED U/S 143(2) AT 44, RAJENDRA BHAWAN, RAJENDRA PLACE, NEW DELHI AND, THEREAFTER, SERVICE OF THIS NOTICE BY AFFIXTURE AT THIS ADDRESS WAS VALID. THE AO HAS STATED IN THE ASSESSMENT ORDER T HAT ADDRESS OF 44, RAJENDRA BHAWAN, RAJENDRA PLACE, NEW DELHI WAS FURN ISHED BY THE ASSESSEE IN THE RETURN OF INCOME. BUT, ON PERUSAL OF RETURN OF INCOME AND THE ASSESSMENT RECORDS, WE FIND THAT ASSESSEE H AS NOT GIVEN THIS ADDRESS OF 44, RAJENDRA BHAWAN, RAJENDRA PLACE, NEW DELHI IN THE RETURN OF INCOME FILED ON 25.11.2006 AND IN THE PHY SICAL RETURN FILED ITA NO. 4672/D/2009 12 ON 7.12.2006. THE ACTUAL ADDRESS MENTIONED BY THE ASSESSEE IN THE RETURN OF INCOME IS 1-GF, AGCR ENCLAVE, KARKARDUMA, DELHI. WE FURTHER FIND THAT OFFICE OF THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 6(1), NEW DELHI HAD ISSUED A NOTICE DATED 1. 10.2007 TO THE ASSESSEE AT THE ADDRESS AT 1-GF, AGCR ENCLAVE, KARK ARDUMA, DELHI IN THE MATTER OF PROCESSING OF INCOME TAX RETURN FO R THE A.Y. 2006- 07 FOR THE PURPOSE OF GIVING CREDIT OF TDS. IN THI S NOTICE, THE ACIT, CIRCLE 6(1) HAS STATED THAT THE ASSESSEE HAD FILED E-RETURN FOR A.Y. 2006-07 ON 25.11.2006 VIDE E-ACKNOWLEDGMENT NO. 901 49209, AND SOME OF TDS/TCS, AS APPEARING IN SCHEDULES 24 & 25 OF THE SAID RETURN, WERE NOT DULY REFLECTED IN THE DEPARTMENTAL DATA BASE. THE OFFICE OF DEPUTY COMMISSIONER WISHED TO CORRECTLY P ROCESSED THE RETURN U/S 143(1) AFTER GIVING DUE CREDIT FOR TDS/T CS AND, THEREFORE, DCIT REQUESTED THE ASSESSEE TO PROVIDE PHOTOCOPIES OF TDS/TCS CERTIFICATES ALONG WITH THE ORIGINAL. IT WAS ALSO MENTIONED THAT ORIGINAL SHALL BE RETURNED ON THE SPOT AFTER VERIFI CATION AND ONLY THE PHOTOCOPIES SHALL BE RETAINED FOR OFFICE RECORD. I N COMPLIANCE TO THIS NOTICE DATED 1.10.2007, THE ASSESSEE FURNISHED DETA ILS OF TDS CLAIM ALONG WITH ZEROX COPIES OF TDS CERTIFICATES VIDE LE TTER DATED 24.10.2007 WHICH WAS RECEIVED BY THE OFFICE ON 28.1 1.2007. IT IS THUS, CLEAR THAT ADDRESS OF 1-GF, AGCR ENCLAVE, KAR KARDUMA, DELHI WAS KNOWN TO THE DCIT, CIRCLE 6(1) AND NOTICE FOR G IVING CREDIT OF ITA NO. 4672/D/2009 13 TDS WAS ACCORDINGLY GIVEN AT THIS ADDRESS. IN THE LIGHT OF THESE FACTS, IT IS THUS, CLEAR THAT THE LAST KNOWN ADDRES S TO THE DEPARTMENT WAS 1-GF, AGCR ENCLAVE, KARKARDUMA, DELHI 110092, AT THE TIME WHEN THE AO HAD ISSUED NOTICE U/S 143(2) ON 11.10.2 007. WE FURTHER, FIND THAT THE ASSESSMENT FOR A.Y. 2005-06 WAS COMPLETED U/S 143(3) VIDE ORDER DATED 30.2.2007. IN THE BODY OF ASSESSMENT, THE ADDRESS OF ASSESSEE IS MENTIONED AS 1-GF, AGCR ENCL AVE, KARKARDUMA, DELHI. THE AO ALSO ISSUED NOTICE OF DE MAND U/S 156 OF THE ACT FOR THE A.Y. 2005-06 AT THE SAME ADDRESS I.E. 1-GF, AGCR ENCLAVE, KARKARDUMA, DELHI. WE FURTHER FIND T HAT RETURN OF INCOME FOR THE A.Y. 2004-05 WAS ALSO FILED SHOWING THE ADDRESS AT 1-GF, AGCR ENCLAVE, KARKARDUMA, DELHI ON 1.11.2004. IT IS FURTHER FOUND THAT ASSESSMENT FOR THE A.Y. 2003-04 WAS ALSO COMPLETED U/S 143(3) OF THE ACT VIDE ORDER DATED 30 .3.2006, WHERE THE ADDRESS OF THE ASSESSEE IS MENTIONED AT 1-GF, A GCR ENCLAVE, KARKARDUMA, NEW DELHI -110092. THESE FACTS OF THE CASE DISCUSSED ABOVE WOULD CLEARLY SHOW THAT THE CORRECT ADDRESS O F THE ASSESSEE LASTLY KNOWN TO THE DEPARTMENT ON 11.10.2007 WHEN N OTICE U/S 143(2) WAS ISSUED WAS 1-GF, AGCR ENCLAVE, KARKARDUM A, DELHI. WE, THEREFORE, HOLD THAT ISSUE OF NOTICE U/S 143(2) AT 44, RAJENDRA BHAWAN, RAJENDRA PLACE, NEW DELHI WAS NOT VALID. T HIS NOTICE U/S 143(2) HAS NOT BEEN ISSUED AT THE CORRECT LAST KNOW N ADDRESS OF THE ITA NO. 4672/D/2009 14 ASSESSEE. THEREFORE, ISSUING THE NOTICE AT THE SAI D ADDRESS AND SERVING THE NOTICE BY AFFIXTURE AT THAT ADDRESS CAN NOT SAID TO BE VALID. IN THIS CASE, THE AO SHOULD HAVE SENT THE NOTICE AT THE LAST KNOWN ADDRESS OF THE ASSESSEE AVAILABLE AS ON 11.10.2007 I.E. 1-GF, AGCR ENCLAVE, KARKARDUMA, NEW DELHI, AND IF THE NOTICE S ENT AT THIS ADDRESS WOULD HAVE RETURNED BACK, THE SERVICE OF NO TICE BY AFFIXTURE AT THIS ADDRESS AS PER LAW WOULD NOT HAVE BEEN ANY IRREGULARITY. 13. IN THE LIGHT OF THE DISCUSSIONS MADE ABOVE, WE THEREFORE, HOLD THAT THE NOTICE U/S 143(2) ISSUED ON 11.10.2007 AND THEN SERVED BY AFFIXTURE AT 44, RAJENDRA BHAWAN, RAJENDRA PLACE, N EW DELHI WAS NOT VALID, AND ON THE BASIS OF THAT NOTICE, NO ASSE SSMENT PROCEEDINGS COULD HAVE BEEN VALIDLY INITIATED. 14. IN THE ASSESSMENT ORDER, THE AO HAS ALSO CLAIME D THAT ON SUBSEQUENT INQUIRY, ADDRESS OF THE ASSESSEE AT 1-GF , AGCR ENCLAVE, KARKARDUMA, DELHI WAS GATHERED, AND THE INSPECTOR W AS DEPUTED TO SERVE THE NOTICE AT THE SAID ADDRESS. THE AO FURTH ER STATED THAT SINCE NO COMPANY EXISTED AT THIS ADDRESS, NOTICE U/S 143( 2) WAS SERVED BY AFFIXTURE THERE ALSO. NOW, WE HAVE TO SEE AS TO WH ETHER NOTICE ISSUED AT 1-GF, AGCR ENCLAVE, KARKARDUMA, DELHI BY THE AO WAS VALID AND WITHIN TIME. IN THE ASSESSMENT ORDER, THE AO H AS NOT MENTIONED ITA NO. 4672/D/2009 15 THE DATE ON WHICH THE NOTICE U/S 143(2) WAS ISSUED AT THE ADDRESS OF 1-GF, AGCR ENCLAVE, KARKARDUMA, DELHI. THE AO HAS ALSO NOT MENTIONED AS TO WHEN THIS NOTICE WAS SERVED BY AFFI XTURE AT THIS ADDRESS. WE HAVE PERUSED THE ASSESSMENT RECORDS, A ND FIND THAT A NOTICE DATED 15.09.2008 WAS ISSUED BY THE AO TO THE ASSESSEE AT THE ADDRESS AT 1-GF, AGCR ENCLAVE, KARKARDUMA, DELHI. THIS NOTICE SENT BY SPEED POST HAS BEEN RETURNED UN-SERVED WITH THE REMARK LEFT W/A, DATED 19.09.2008. THE INSPECTOR SHRI AMAL P AL SINGH WAS THEN DEPUTED TO TRACE OUT THE WHERE ABOUT OF THE AS SESSEE COMPANY. HE VISITED AT THE ADDRESS AT 1-GF, AGCR ENCLAVE, KA RKARDUMA, DELHI AND FOUND FROM ENQUIRIES MADE FROM THE NEARBY RESIDENCE AND INHABITANTS THAT THIS COMPANY WAS FUNCTIONING FROM 1-GF, AGCR ENCLAVE LONG BACK AND HAD SHIFTED FROM THIS PLACE T O EITHER AT SHOPPING COMPLEX, KARKARDUMA, DELHI OR SAINIK ENCLA VE, DELHI. THE INSPECTOR VISITED BOTH THE PLACES BUT NO ONE WA S ABLE TO TELL THE WHERE-ABOUT OF THE SAID COMPANY. THE INSPECTOR FUR THER STATED THAT THE ALL POSSIBLE EFFORTS WERE MADE BUT NO RESULT WA S ACHIEVED. THIS REPORT OF THE INSPECTOR IS DATED 26.11.2008. THE NOTICE ISSUED ON 15.09.2008 AT 1-GF, AGCR ENCLAVE, KARKARDUMA, DELHI IS BEYOND THE PERIOD OF 12 MONTHS FROM THE END OF THE MONTH I N WHICH THE RETURN WAS FILED. THEREFORE, ISSUE OF THIS NOTICE DATED 15.09.2008 IS BEYOND THE STIPULATED TIME PROVIDED U/S 143(2) OF T HE ACT. ITA NO. 4672/D/2009 16 THEREFORE, THIS NOTICE DOES NOT HELP THE DEPARTMENT TO UPHOLD THE VALIDITY OF THE ASSESSMENT MADE BY THE AO U/S 144 O F THE ACT. 15. EVEN OTHERWISE, THE SERVICE OF NOTICE BY AFFIXT URE AT 44, RAJENDRA BHAWAN, RAJENDRA PLACE, DELHI IS ALSO NOT IN ACCORDANCE WITH THE PROVISIONS OF ORDER V, RULE 17 OF THE CODE OF CIVIL PROCEDURE, 1908 IN AS MUCH AS THE PLACE WAS NOT PRO PERLY IDENTIFIED AND THE REPORT OF SERVICE WAS NOT AUTHENTICATIVE, B Y ANY INDEPENDENT PERSON. WE HAVE GONE THROUGH THE AFFIXTURE REPORT SUBMITTED BY PROCESS SERVER STATING THAT HE AFFIXED THE NOTICE A T 44, RAJENDRA BHAWAN, RAJENDRA PLACE, DELHI IN THE PRESENCE OF IN SPECTOR OF INCOME TAX, SHRI AMAL PAL SINGH. ON THE BASIS OF T HIS REPORT, DCIT DECLARED THE SERVICE TO BE VALID VIDE HIS NOTE DATE D 31.10.2007. IN THE SERVICE REPORT IT HAS BEEN MENTIONED THAT NOTIC E HAS BEEN SERVED BY THE AFFIXTURE ON 11.10.2007. SINCE THE AFFIXTUR E OF NOTICE HAS NOT BEEN MADE IN ACCORDANCE WITH THE AFORESAID PROVISIO NS OF ORDER V, RULE 17 OF THE CODE OF CIVIL PROCEDURE, 1908, THE S ERVICE OF NOTICE BY AFFIXATION CANNOT HELD TO BE VALID. IN THIS CON NECTION, RELIANCE MAY BE PLACED UPON THE DECISION OF HONBLE HIGH COU RT OF PUNJAB & HARYANA IN THE CASE OF COMMISSIONER OF INCOME TAX V S. NAVEEN CHANDER (2010) 323 ITR 49 (P&H), WHERE IT HAS BEEN HELD THAT WHEN SERVICE WAS SOUGHT TO BE AFFECTED BY AFFIXATIO N WHICH WAS ITA NO. 4672/D/2009 17 REQUIRED TO BE DONE IN ACCORDANCE WITH THE PROCEDUR E LAID DOWN BY THE ORDER V RULE 20 OF CPC BUT REQUIREMENTS OF ORDE R V RULE 20 OF CPC WERE NOT COMPLIED WITH, BLOCK ASSESSMENT PROCEE DINGS IN PURSUANCE TO SUCH NOTICE WERE NOT VALID. IN THIS C ASE IT WAS HELD AS UNDER (EXTRACTED FROM HEAD NOTE): - HELD THAT, THE TRIBUNAL HAD REFERRED TO THE REPORT , ISSUED BY THE PROCESS SERVER. ACCORDING TO THE REP ORT OF THE INSPECTOR/NOTICE SERVER, THE NOTICE WAS AFFIXED ON THE MAIN DOOR OF SHOP NO. 33. THERE WAS NO EVIDENCE OF ANY LOCAL PERSON HAVING BEEN ASSOCIATED WITH IN IDENTIF YING THE PLACE OF BUSINESS OF THE ASSESSEE-RESPONDENT AN D THE REPORT WAS NOT WITNESSED BY ANY PERSON AT ALL. IT H AD BEEN FOUND TO BE FLAGRANT VIOLATION OF RULE 17 OF O RDER V OF THE CODE WHICH LAYS DOWN A PROCEDURE TO SERVE NO TICE BY AFFIXTURE. HENCE, THE TRIBUNAL WAS JUSTIFIED IN HOLDING THAT H AVING REGARD TO THE REPORT OF THE INSPECTOR/NOTICE SERVER , THE REQUIREMENTS OF THE CODE OF CIVIL PROCEDURE HAD NOT BEEN FULFILLED AND THE BLOCK ASSESSMENT COMPLETED I N PURSUANCE TO THE NOTICE WAS NOT VALID. 16. IN THE LIGHT OF THE REASONS GIVEN ABOVE WE, THE REFORE, UPHELD THE ORDER OF CIT(A) IN HOLDING THAT ASSESSMENT FRAM ED U/S 144 WAS INVALID AS NO NOTICE U/S 143(2) WAS VALIDLY SERVED UPON THE ASSESSEE WITHIN THE STATUTORY TIME. THUS, THE APPEAL FILED BY THE REVENUE FAILS. ITA NO. 4672/D/2009 18 17. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. THIS DECISION IS PRONOUNCED IN THE OPEN COURT ON 17 .06.2011 SD/- SD/- (B.C. MEENA) (C.L. S ETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17.6.11 *KAVITA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR