Mohan Dairy, V. DCIT, Circle,

ITA 4979/DEL/2004

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97795 (ITAT-DELHI)
• Duration Of Justice: 10 year(s) 11 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 02-07-2015
• Assessment Year: 1998-1999
• Appeal Filed On: 19-11-2004
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V R SONBHA DRA SENIOR
• Assessee Lawyers: RAJ KUMAR GUPTA
• Keywords: Validity of assessment; Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH F BENCH F BENCH F BENCH F : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY BEFORE SHRI J. SUDHAKAR REDDY BEFORE SHRI J. SUDHAKAR REDDY BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AN D , ACCOUNTANT MEMBER AND , ACCOUNTANT MEMBER AND , ACCOUNTANT MEMBER AND SHRI CHANDRA MOHAN GARG SHRI CHANDRA MOHAN GARG SHRI CHANDRA MOHAN GARG SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO . .. . 4979/DEL/2004 4979/DEL/2004 4979/DEL/2004 4979/DEL/2004 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 1998 1998 1998 1998 - -- - 99 9999 99 M/S MOHAN DAIRY, M/S MOHAN DAIRY, M/S MOHAN DAIRY, M/S MOHAN DAIRY, SIYANA ROAD, SIYANA ROAD, SIYANA ROAD, SIYANA ROAD, BULANDSHAHR BULANDSHAHR BULANDSHAHR BULANDSHAHR (U.P.). (U.P.). (U.P.). (U.P.). VS. VS. VS. VS. DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE BULANDSHAHR, CIRCLE BULANDSHAHR, CIRCLE BULANDSHAHR, CIRCLE BULANDSHAHR, U.P. U.P. U.P. U.P. (APPELLANT) (RESPONDENT) ITA NO ITA NO ITA NO ITA NO .4934/DEL/2004 .4934/DEL/2004 .4934/DEL/2004 .4934/DEL/2004 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 1998 1998 1998 1998 - -- - 99 9999 99 ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE BULANDSHAHR, CIRCLE BULANDSHAHR, CIRCLE BULANDSHAHR, CIRCLE BULANDSHAHR, U.P. U.P. U.P. U.P. VS. VS. VS. VS. M/S MOHAN DAIRY, M/S MOHAN DAIRY, M/S MOHAN DAIRY, M/S MOHAN DAIRY, S SS SIYANA ROAD, IYANA ROAD, IYANA ROAD, IYANA ROAD, BULANDSHAHR (U.P.). BULANDSHAHR (U.P.). BULANDSHAHR (U.P.). BULANDSHAHR (U.P.). (APPELLANT) (RESPONDENT) CROSS OBJECTION CROSS OBJECTION CROSS OBJECTION CROSS OBJECTION NO NONO NO .68/DEL/2005 .68/DEL/2005 .68/DEL/2005 .68/DEL/2005 (IN ITA NO.4934/DEL/2004) (IN ITA NO.4934/DEL/2004) (IN ITA NO.4934/DEL/2004) (IN ITA NO.4934/DEL/2004) ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 1998 1998 1998 1998 - -- - 99 9999 99 ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE BULANDSHAHR, CIRCLE BULANDSHAHR, CIRCLE BULANDSHAHR, CIRCLE BULANDSHAHR, U.P. U.P. U.P. U.P. VS. VS. VS. VS. M/S MOHAN DAIRY, M/S MOHAN DAIRY, M/S MOHAN DAIRY, M/S MOHAN DAIRY, SIYANA RO SIYANA RO SIYANA RO SIYANA ROAD, AD, AD, AD, BULANDSHAHR BULANDSHAHR BULANDSHAHR BULANDSHAHR 203 001, 203 001, 203 001, 203 001, U.P. U.P. U.P. U.P. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJ KUMAR GUPTA, CA. REVENUE BY : SHRI V.R. SONBHADRA, SENIOR DR. DATE OF HEARING : 09.10.2015 09.10.2015 09.10.2015 09.10.2015 DATE OF PRONOUNCEMENT : 30.10.2015 30.10.2015 30.10.2015 30.10.2015 ITA-4979/DEL/2004 & 2 OTHERS 2 O OO ORDER RDER RDER RDER PER CHANDRA MOHAN GARG, J PER CHANDRA MOHAN GARG, J PER CHANDRA MOHAN GARG, J PER CHANDRA MOHAN GARG, JM: M:M: M:- -- - ITA NO.4979/DEL/2004 ITA NO.4979/DEL/2004 ITA NO.4979/DEL/2004 ITA NO.4979/DEL/2004 ASSESSEES APPEAL : ASSESSEES APPEAL : ASSESSEES APPEAL : ASSESSEES APPEAL :- -- - THESE CROSS APPEALS BY THE REVENUE AND THE ASSESSEE AND C ROSS- OBJECTION OF THE ASSESSEE HAVE BEEN FILED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) DATED 19.04.2004 FOR ASSESSMENT YEAR 1998-99 PASSED IN PURSUANT TO THE SET ASIDE ORDER PASSED BY ITAT, NEW DELHI DATED 05.03.2004 IN ITA NO. 1608/DEL/2002. 2. AT THE VERY OUTSET, IT IS PERTINENT TO MENTION THA T THE ITAT SET ASIDE THE APPEAL TO THE FILE OF CIT(A) FOR AFRESH ADJ UDICATION AND THE CIT(A) GRANTED PART RELIEF TO THE ASSESSEE. CONSEQUENTL Y, THE ASSESSEE FILED THIS APPEAL AGITATING THE ISSUES ON WHICH THE ASSESSE E COULD NOT GET RELIEF AND THE REVENUE HAS ALSO FILED APPEAL AGIT ATING THE ISSUES ON WHICH THE CIT(A) GRANTED RELIEF TO THE ASSESSEE. AT TH E SAME TIME, THE ASSESSEE HAS ALSO FILED CROSS-OBJECTIONS AGAINST THE SAID ORDE R. FURTHER, DURING APPELLATE PROCEEDINGS BEFORE THE TRI BUNAL, THE ASSESSEE PLEADED TO RAISE ADDITIONAL GROUND CHALLENGING THE VALIDITY OF ASSESSMENT ORDER ON THE GROUND OF NO SERVICE OF NOTICE U /S 143(2) OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) BUT T HIS PRAYER WAS REJECTED BY THE TRIBUNAL VIDE ORDER DATED 26.05.200 5. THE ASSESSEE CARRIED THE ISSUE BEFORE HONBLE JURISDICTIONAL HIGH C OURT OF ALLAHABAD IN CIVIL MISC. WRIT PETITION NO.1071 OF 2005 WHICH W AS ALLOWED BY ORDER DATED 25.01.2006 AND THE HONBLE HIGH COURT DIRECTE D THIS TRIBUNAL TO PERMIT THE PETITIONER/ASSESSEE TO ADD ADDITIONAL GROUND NO.7, WHICH READS AS UNDER:- THAT THE ASSESSMENT PROCEEDINGS AND CONSEQUENTIAL ASSESSMENT ORDER IS WITHOUT JURISDICTION AND BARRED BY LIMITATION IN VIEW OF NON SERVICE OF STATUTORY NOTICE UNDER ITA-4979/DEL/2004 & 2 OTHERS 3 SECTION 143(2) WITHIN THE PERIOD ALLOWED AS PER PROV ISO TO SECTION 143(2) OF THE ACT. 3. WE HAVE HEARD ARGUMENTS OF BOTH THE SIDES AND CAREF ULLY PERUSED THE RELEVANT MATERIAL PLACED ON RECORD, INTE R ALIA, PAPER BOOKS OF THE ASSESSEE, PAPER BOOK OF THE DEPARTMENT, AFFIDAVI T OF THE ASSESSEE, AFFIDAVIT OF NOTICE SERVER SHRI LAL SINGH AND ORDERS/JUDGMENTS RELIED BY BOTH THE SIDES AND WRITTEN SYNOPSIS OF THE ASSESSE E DATED 02.07.2015 SPREAD OVER 16 PAGES. 4. THE LEARNED ASSESSEES REPRESENTATIVE (AR) SUBMITTED TH AT THE RETURN FOR ASSESSMENT YEAR 1998-99 WAS FILED ON 31.10.19 98 AND AS PER SECTION 143(2) OF THE ACT, THE NOTICE SHOULD HAV E BEEN ISSUED AND SERVED ON OR BEFORE 31.10.2009 AND THE ASSESSEE HAS FILED AFFIDAVIT SUPPORTING THE FACT OF NON-SERVICE OF NOTICE U/S 143(2 ) OF THE ACT TILL 31.10.1999 (ASSESSEES PAPER BOOK PAGE 37) DATED 23.03.2 005. THE LEARNED AR VEHEMENTLY CONTENDED THAT THE DEPARTMENT HAS VERIFIED THE ASSESSMENT FOLDER WHEREIN, NO TRACE OF ANY NOTICE U /S 143(2) ISSUED OR/AND SERVED TILL 31.10.1999 AND THE ASSESSMENT OR DER IS ALSO SILENT ABOUT SERVICE OF THE NOTICE ON THE ASSESSEE ON OR BEFORE 31.10.1999. THE LEARNED AR FURTHER POINTED OUT THA T SERVICE OF NOTICE U/S 143(2) OF THE ACT IS NECESSARY WITHIN ALLOWED TIME LIMIT FOR VALID ASSUMPTION OF JURISDICTION FOR FRAMING ASSESSMENT. RELIA NCE HAS BEEN PLACED ON FOLLOWING ORDERS/JUDGMENTS :- (I) WHIRLPOOL INDIA HOLDINGS LTD., 1 SOT 165 (DELHI) . (II) WORLDWIDE EXPORTS PVT.LTD., 272 ITR 162 (DELHI) . (III) BHAGAT SINGH VS. VIRENDER SINGH 75 ITD 1 (DE LHI)(TM). (IV) SHRI SIDH & CO. 194 ITR 747 (ALL). (V) BAIKUNTH NATH SINGHAL 89 ITD 109 (AGRA). (VI) VIPAN KHANNA 255 ITR 220 (P&H). ITA-4979/DEL/2004 & 2 OTHERS 4 (VII) CBDT CIRCULAR NO.549 DATED 31.10.1989 (PARA 5 .13). (VIII) RAKESH S. MARDIA 74 TTJ 836 (AHD.). (IX) P. ABDUL KADAR HAMZA 246 ITR 14 (KER.). (X) MAXIMMA SYSTEMS LTD. 106 TAXMAN 133 (AHD)(MAG.) . (XI) ARASINA HOTELS LTD. 57 TTJ 701 (BANG.). (XII) SREE MURUGAN TRADING CO. 68 ITD 6 (COCH.). 5. THE LEARNED AR FURTHER CONTENDED THAT IF SERVICE OF NOTICE IS DENIED BY THE ASSESSEE BY FILING AFFIDAVIT THEN ONUS STAN DS SHIFTED ON THE ASSESSING OFFICER/DEPARTMENT TO REBUT THE SAME AND T O ESTABLISH VALID AND PROPER SERVICE OF NOTICE WITHIN PRESCRIBED TIME LIMIT AND DOCUMENTS SUBMITTED BY THE DEPARTMENT IN ITS PAPER BOO K INCLUDING AFFIDAVIT OF THE SO CALLED NOTICE SERVER DOES NOT ESTAB LISH THE FACT OF PROPER OR VALID SERVICE OF NOTICE AND THE DEPARTMENT HAD FAILED IN PROVING THE SERVICE OF THE NOTICE WITHIN PRESCRIBED T IME LIMIT. TO SUPPORT THIS CONTENTION, RELIANCE HAS BEEN PLACED ON F OLLOWING JUDGEMENTS OF HON'BLE DELHI HIGH COURT :- (I) TELE TUBE ELECTRONICS 42 DSTC-J69 (DELHI-HC). (II) CIT VS. SILVER STREAK TRADING (P) LTD. 169 TA XMAN 16 (DELHI). (III) CIT VS. LUNAR DIAMONDS LTD. - 281 ITR 1 (DELHI) . 6. THE LEARNED AR VEHEMENTLY POINTED OUT THAT ADMIT TEDLY NO ACKNOWLEDGEMENT RECEIPT AND EVEN NO COPY OF SUCH NO TICE IS AVAILABLE WITH THE DEPARTMENT TO PROVE SERVICE U/S 143(2) OF TH E ACT AND THE DEPARTMENT HAS TO PROVE VALID AND PROPER SERVICE OF N OTICE WITH POSITIVE EVIDENCE AND IN WHICH IT HAS FAILED. THE LE ARNED AR SUBMITTED THAT IN THIS SITUATION, VIZ., FAILURE OF THE DEPARTME NT TO SHOW PROPER SERVICE OF THE NOTICE, IT SHALL BE PRESUMED THAT THE NOTICE WAS NOT SERVED UPON THE ASSESSEE WITHIN PRESCRIBED LIMITATION. ITA-4979/DEL/2004 & 2 OTHERS 5 7. THE LEARNED AR LASTLY SUBMITTED THAT THE DEPARTMEN T HAS FILED A PAPER BOOK CONTAINING SOME DOCUMENTS INCLUDING AFFIDA VIT OF SHRI LAL SINGH, SO CALLED NOTICE SERVER, BUT THIS CLAIM DOES NOT STAND PROVED FROM THESE DOCUMENTS AS THE AFFIDAVIT OF SHRI LAL SING H DOES NOT MENTION AS TO ON WHOM THE SERVICE HAD BEEN MADE. IT SIMPLICITOR STATES THAT SERVICE EFFECTED ON THE ASSESSEE WHICH IS A PA RTNERSHIP FIRM AND AS PER SECTION 282(2)(A) OF THE ACT, SERVICE HAS T O BE EITHER ON THE PARTNER OR ON MANAGER/AUTHORIZED PERSON. THE PARTN ER OF THE ASSESSEE FIRM HAS SUBMITTED HIS AFFIDAVIT TO SUPPORT THE PART OF NON- SERVICE EITHER ON HIM OR ON OTHER PARTNER OR AUTHORI ZED PERSON THUS IT WAS MUCH NECESSARY TO STATE THE NAME AND AUTHORITY OF T HE PERSON ON WHOM SERVICE OF THE SAID NOTICE HAS BEEN CLAIMED BY TH E DEPARTMENT. THE LEARNED AR ALSO CONTENDED THAT IN THE ABSENCE OF NAME, AUTHORITY AND PARTICULARS OF THE PERSON ON WHOM SERVICE HAS BEE N CLAIMED, NO CREDENCE OR WEIGHTAGE AND BENEFICIAL USE OF THE AFFI DAVIT OF SHRI LAL SINGH CAN BE ASSIGNED IN FAVOUR OF THE DEPARTMENT. H ENCE, WHEN DEPARTMENT HAS FILED TO PROVE PROPER AND VALID SERVI CE OF NOTICE U/S 143(2) OF THE ACT WITHIN THE PRESCRIBED TIME LIMIT N EITHER ON ANY PARTNER OR ANY AUTHORIZED REPRESENTATIVE OR MANAGE O F THE ASSESSEE PARTNERSHIP FIRM AS REQUIRED BY SECTION 282(2)(A) O F THE ACT, WITHIN PRESCRIBED TIME LIMIT, THEN IMPUGNED ASSESSMENT ORDER SHO ULD BE QUASHED AND ANNULLED. 8. REPLYING TO THE ABOVE, THE LEARNED DEPARTMENTAL REPRESENTATIVE (THE DR) SUBMITTED THAT AS PER LETTER OF ACIT, CIRCLE BULANDSHAHR DATED 25.05.2006 (DEPARTMENTS PAPER BOOK (DPB) PAGE-1), A FFIDAVIT OF THE NOTICE SERVER SHRI LAL SINGH AFFIRMING SERVICE OF TH E NOTICE (DPB- PAGE 2), COPY OF THE NOTICE SERVERS REGISTER SHOWING DETAIL S OF NOTICE AT SERIAL NO.26 (DPB PAGE 3-6), COPIES OF THE SIX OTHER NOTICES SERVED BY THE SAME NOTICE SERVER TO SHOW THAT HE (SHRI LAL SING H) KNEW THE AUTHORIZED PERSON (DPB PAGES 7-12), LETTER OF THE ACI D, BULANDSHAHR ITA-4979/DEL/2004 & 2 OTHERS 6 CERTIFYING THAT NOTICES ISSUED EARLIER OR SUBSEQUENT TO THE IMPUGNED NOTICE WERE DULY SERVED (DPB PAGE-13), PROOF OF SERV ICE OF NOTICE AT SR.24, 25, 27 & 28 OF NOTICE SERVERS REGISTER TO OTHE R ASSESSEES BY THE SAME NOTICE SERVER IN THE SAME MANNER (DPB PAGES 14-17) , AFFIDAVIT OF TAX ASSISTANT SHRI TEJ SINGH SWORN ON 19.05.2006 (DPB P AGE 18), COPY OF THE SCRUTINY REGISTER GIVING DETAILS OF ASSESSEES CASE A T S.NO.26 (DPB PAGE 19) AND PHOTOCOPY OF ORDER SHEET OF THE ASSE SSMENT RECORD DATED 12.08.1999 CLEARLY DEMONSTRATE ISSUANCE OF NOTIC E U/S 143(2) OF THE ACT TO THE ASSESSEE, HENCE, ONUS OF THE DEPARTMENT STANDS DISCHARGED AND IT SHOULD BE PRESUMED THAT NOTICE WAS P ROPERLY AND VALIDLY SERVED UPON THE ASSESSEE ON 17.08.1999 WHICH IS WITHIN THE PRESCRIBED TIME LIMIT, HENCE, IT IS PROVED BY THE POSI TIVE AND BEST AVAILABLE EVIDENCE THAT THE NOTICE WAS VALIDLY AND P ROPERLY SERVED UPON THE ASSESSEE WITHIN PRESCRIBED LIMITATION. THUS, TH E LEGAL GROUND/ADDITIONAL GROUND OF THE ASSESSEE MAY KINDLY BE DISMISSED. 9. REPLYING TO THE ABOVE, THE LEARNED AR FURTHER RE ITERATED RELEVANT PART OF THE ASSESSEES WRITTEN SYNOPSIS AND SUBMITTED THAT THE ONUS OF ASSESSEE STOOD DISCHARGED BY WAY OF GIVING AFFIDAVIT OF A SSESSEES PARTNER SHRI BRIJ MOHAN DATED 23.03.2005 AND ALL 20 DOCUMENTS SUBMITTED BY THE DEPARTMENT IN ITS PAPER BOOK DO NOT ESTABLISH PROPER SERVICE OF NOTICE WITHIN PRESCRIBED LIMIT VIZ. ON OR BEFORE 31.10.1999 EITHER ON THE PARTNER OR AUTHORIZED PERSON OR MANAGE R OF THE ASSESSEE PARTNERSHIP FIRM AND THEREFORE, THE ONUS WAS SHIFTED ON THE DEPARTMENT/ASSESSING OFFICER TO ESTABLISH VALID AND PROPE R SERVICE OF THE NOTICE U/S 143(2) OF THE ACT WHICH HAS NOT BEEN D ISCHARGED BY WAY OF RELIABLE AND POSITIVE EVIDENCE, HENCE, IMPUGNED A SSESSMENT ORDER MAY KINDLY BE QUASHED AND ADDITIONAL GROUND NO.7 OF THE ASSESSEE MAY KINDLY BE ALLOWED. ITA-4979/DEL/2004 & 2 OTHERS 7 10. ON CAREFUL CONSIDERATION OF RIVAL SUBMISSIONS, AT TH E VERY OUTSET, WE RESPECTFULLY TAKE COGNIZANCE OF THE DICTA LAID DO WN BY HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. LUNAR DIAMONDS LTD. (SUPRA) WHEREIN IT WAS HELD THAT THE ASSESSEE HAD FILED AN AFFIDAVIT STAT ING THAT IT DID NOT RECEIVE THE NOTICE AND THE TRIBUNAL RIGHTLY HEL D THAT UNDER THESE CIRCUMSTANCES, THE BURDEN WAS UPON THE DEPARTMENT TO PROVE THAT THE NOTICE WAS SERVED UPON THE ASSESSEE WITHIN THE PRESCRIBED TIME. THEIR LORDSHIPS FURTHER HELD THAT IN THE EVENTUALITY WHEN THE DEPARTMENT HAD FAILED TO PROVE ITS CASE IN THIS REGARD, THEN THE TRIBUNAL WAS RIGHT IN SETTING ASIDE THE ORDER OF ASSESSMENT. 11. IN THE LIGHT OF THE ABOVE PROPOSITION, WHEN WE R EALIZE THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, FIRSTLY, WE NOTE THAT ON BEHALF OF THE ASSESSEE SHRI BRIJ MOHAN HAS FILED AN AFFIDAVIT ST ATING THAT THE ASSESSEE HAS NOT RECEIVED ANY NOTICE U/S 143(2) OF THE AC T TILL 31.10.1999. HOWEVER, WE FURTHER OBSERVE THAT THE DE PARTMENT HAS ALSO FILED AN AFFIDAVIT OF THE NOTICE SERVER SHRI LAL SINGH WHICH STATES THAT HE SERVED THE NOTICE UPON THE ASSESSEE ON 17.08.1 999 AND ENTRY OF THE SERVICE OF THE SAID NOTICE WAS PLACED AT PAGE 1 SR.NO.8 OF THE SERVICE REGISTER AND RECEIPT/ACKNOWLEDGEMENT WAS RETUR NED TO THE RELATED STAFF MEMBER OF THE DEPARTMENT. WE FURTHER OBSERVE THAT ON BEHALF OF THE REVENUE, ANOTHER AFFIDAVIT OF SHRI TE J SINGH, TAX ASSISTANT DEPOSED ON 19.05.2006 HAS ALSO BEEN FILED WHICH STATES T HAT HE RECEIVED ACKNOWLEDGEMENT/RECEIPT OF THE SERVICE OF T HE NOTICE U/S 143(2) OF THE ACT FROM SHRI LAL SINGH, NOTICE SERVER ON 20.03.1999 WHICH WAS ENCLOSED TO THE RESPECTIVE FILE OF THE ASSESSEE. AT THE SAME TIME, WHEN WE PERUSE DEPARTMENTAL PAPER BOOK PAGE 3 VIZ., PAGE 1 ENTRY 8 OF THE PROCESS SERVICE REGISTER, THEN FROM THE LAST COLUMN, IT IS AMPLE CLEAR THAT THE DATE OF SERVICE OF THE NOTICE H AS BEEN MENTIONED AS 16.08.1999 WHEREAS THE NOTICE SERVER SHRI LAL SINGH IN HIS AFFIDAVIT ITA-4979/DEL/2004 & 2 OTHERS 8 HAD STATED THAT THE NOTICE WAS SERVED UPON THE ASSESSEE ON 17.08.1999. 12. WHEN WE FURTHER PERUSE THE LETTER OF ACIT, CIRCL E BULANDSHAHR DATED 01.06.2006 AVAILABLE AT PAGE 13 OF THE DEPART MENTAL PAPER BOOK, THEN IT IS AMPLE CLEAR THAT THE ASSESSING OFFICER HIMSELF HAS INFORMED TO THE LEARNED DR THAT THE NOTICE SERVER SH RI LAL SINGH SERVED FIVE NOTICES TO VARIOUS ASSESSEES INCLUDING THE ASSESSEE OF TH E PRESENT CASE M/S MOHAN DAIRY AND THE ACKNOWLEDGEMENTS OF SERVIC E WERE PLACED ON RECORD AND AS PER AVAILABLE RECORDS, FOUR A CKNOWLEDGEMENTS ARE AVAILABLE EXCEPT ACKNOWLEDGMENT OF PRESENT ASSESSEE I.E. M/S MOHAN DAIRY. IN THESE CIRCUMSTANCES, MERELY AFFIDAVIT S OF NOTICE SERVER SHRI LAL SINGH AND TAX ASSISTANT SHRI TEJ SINGH STATE THAT THE NOTICE WAS SERVED UPON THE ASSESSEE AND ACKNOWLEDGEMENT WAS PLACED ON RECORD BUT THIS NOTICE AND ACKNOWLEDGEMENT HAVE NOT BEEN FOUND IN THE RELEVANT ASSESSMENT RECORDS AND IF THESE ACT UALLY EXISTED AND PLACED IN THE FILE AND LATER ON NOT AVAILABLE I N THE FILE, THEN THE ASSESSING OFFICER SHOULD HAVE TAKEN DEPARTMENTAL ACTION ON THE ERRING STAFF AND WE ARE UNABLE TO SEE ANY SHOW CAUSE MEMO OR I NQUIRY NOTICE OR ANY OTHER INVESTIGATION IN THIS REGARD WHICH PROVE S THAT THE OFFICIALS ARE QUITE CLEAR IN THEIR NOTIONS THAT SUCH SO CALLED N OTICE AND SO CALLED RECEIPT NEVER EXISTED. SINCE NO SUCH NOTICE WAS PREP ARED AND SERVED, THE SAME COULD NOT HAVE BEEN AVAILABLE IN THE ASSESSMENT RECORDS. IT IS ALSO RELEVANT TO MENTION THAT AS PER NOTICE SERVICE REGISTER PAGE 1 SR.NO.8, NOTICE WAS SERVED ON THE ASSESSEE ON 16.08.1999 WHEREAS THE NOTICE SERVER SHRI LAL SINGH IN HIS AFFIDAVIT STATES TH E DATE OF SERVICE AS 17.08.1999 WHICH IS NOT RELIABLE. IT IS ALSO OBSERVED THAT THE LETTER OF THE ASSESSING OFFICER DATED 25.05.2006 STATES THAT IN THE NOTICE SERVICE REGISTER, ENTRY OF SERVICE IS AT SR.NO.26 ON PA GE 2 FOR THE SERVICE ON 17.08.1999 AND THE NOTICE SERVER SHRI LAL SINGH IN HIS AFFIDAVIT SAYS THAT ENTRY OF SERVICE OF NOTICE IN HIS SE RVICE REGISTER IS ITA-4979/DEL/2004 & 2 OTHERS 9 MENTIONED AT PAGE 1 SR.NO.8. AS PER CONTENTION OF T HE ASSESSING OFFICER, IN THE REGISTER OF NOTICE SERVER SHRI LAL SI NGH, THE SERVICE ENTRY IS APPEARING AT SR.NO.26 WHILE THE NOTICE SERVER SHRI LAL SINGH IN HIS AFFIDAVIT STATES THAT THE SERVICE ENTRY WAS PLACED AT P AGE 1 SR.NO.8. BOTH THESE REGISTERS ARE SEPARATE AND EXPLAIN DIFFEREN T DATES OF ALLEGED SERVICE OF NOTICE AND IN THE TOTALITY OF FACTS AND CI RCUMSTANCES, WE ARE UNABLE TO ACCEPT THE CONTENTION/VERSION OF THE DEPAR TMENT THAT SHRI LAL SINGH SERVED NOTICE ON THE ASSESSEE AND COPY OF THE NOTI CE AND ACKNOWLEDGEMENT WERE RETURNED TO THE TAX ASSISTANT SH RI TEJ SINGH WHO PLACED THE SAME IN THE RELEVANT ASSESSMENT RECORDS AN D SUBSEQUENTLY, COPY OF THE NOTICE AND ACKNOWLEDGMENT W ERE MISSING AND ON THE BASIS OF COPIES OF THE SERVICE OF NOTICE ON OTHER FOUR ASSESSEES, PRESUMPTION OF VALID AND PROPER SERVICE OF NOTI CE SHOULD BE INFERRED. 13. AT THE SAME TIME, WE ARE IN AGREEMENT WITH THE CONTENTION OF THE LEARNED AR THAT THE ASSESSEE BEING A PARTNERSHIP FIR M, THE NOTICE SHOULD HAVE BEEN SERVED EITHER ON PARTNER OF THE FIRM OR AUTHORIZED REPRESENTATIVE OF THE FIRM OR MANAGER OF THE FIRM AS REQUIRED U/S 282(2)(A) OF THE ACT AND NOTICE SERVER SHRI LAL SING H IN HIS AFFIDAVIT SIMPLY STATES THAT HE SERVED THE NOTICE ON THE ASSESSEE BUT IT IS HIGHLY IMPROBABLE, THEREFORE, VALID AND PROPER SERVICE OF N OTICE CANNOT BE INFERRED IN FAVOUR OF THE DEPARTMENT. 14. ON THE BASIS OF THE FOREGOING DISCUSSION AND LOGICA L DISCUSSION OF THE DEPARTMENTAL AFFIDAVIT AND OTHER DOCUMENTARY EV IDENCE, WE ARE INCLINED TO HOLD THAT THE ASSESSEE DISCHARGED ITS ONUS BY SUBMITTING AFFIDAVIT OF THE PARTNER OF THE ASSESSEE FIRM STATING TH AT NO NOTICE U/S 143(2) OF THE ACT WAS SERVED TILL 31.10.1999 WHICH WA S THE LAST DAY OF PRESCRIBED LIMIT FOR THE RETURN WHICH WAS FILED ON 31 .10.1998. AT THE SAME TIME, WHEN AS PER DICTA OF HON'BLE DELHI HIGH C OURT IN THE CASE OF ITA-4979/DEL/2004 & 2 OTHERS 10 LUNAR DIAMONDS LTD. (SUPRA), THE ONUS SHIFTED ON THE R EVENUE TO SHOW PROPER AND VALID SERVICE OF THE NOTICE, THEN WE DECL INE TO ACCEPT THE CONTENTION AND CIRCUMSTANCES OF THE REVENUE THAT SHRI LAL SINGH, NOTICE SERVER SERVED THE NOTICE UPON THE ASSESSEE AND RET URNED THE COPY OF THE NOTICE AND ACKNOWLEDGEMENT TO TAX ASSISTA NT SHRI TEJ SINGH WHO, IN TURN, KEPT THESE DOCUMENTS IN THE RELEV ANT ASSESSMENT RECORD FILE AND THE SAME WERE MISPLACED SUBSEQUENTLY AN D HENCE, ON THE BASIS OF PROOF OF SERVICE OF OTHER FOUR ASSESSEES DURIN G THE SAME PERIOD, INFERENCE OF VALID SERVICE OF NOTICE SHOULD B E INFERRED. WE FURTHER MAKE IT CLEAR THAT THE REVENUE MISERABLY FAI LED TO DISCHARGE ITS ONUS TO SHOW THAT THE NOTICE U/S 143(2) OF THE ACT WAS VALIDLY AND PROPERLY SERVED UPON THE ASSESSEE WITHIN THE PRESCRIBED L IMIT AND HENCE, THE CONTENTION OF THE REVENUE IS REJECTED. W E ARE, THEREFORE, OF THE CONSIDERED OPINION THAT IT IS A CLEAR CASE OF NON- SERVICE OF NOTICE U/S 143(2) OF THE ACT WITHIN THE STATUTORY PERIOD AS P ER PROVISO TO SECTION 143(2) OF THE ACT AS EXISTED IN THE STATUTORY PROVISIONS OF THE ACT PRIOR TO SUBSTITUTION OF NEW SUB-SECTION (2) TO S ECTION 143 W.E.F. 01.06.2002 AND, THEREFORE, THE ASSESSMENT ORDER CANNOT BE HELD AS SUSTAINABLE AND WE QUASH THE SAME. ACCORDINGLY, ADDITI ONAL GROUND NO.7 OF THE ASSESSEE IS ALLOWED. ITA NO.4934/DEL/2004 ITA NO.4934/DEL/2004 ITA NO.4934/DEL/2004 ITA NO.4934/DEL/2004 REVENUES APPEAL AND CROSS REVENUES APPEAL AND CROSS REVENUES APPEAL AND CROSS REVENUES APPEAL AND CROSS- -- -OBJECTION OBJECTION OBJECTION OBJECTION NO.68/DEL/2005 NO.68/DEL/2005 NO.68/DEL/2005 NO.68/DEL/2005 OF THE ASSESSEE : OF THE ASSESSEE : OF THE ASSESSEE : OF THE ASSESSEE :- -- - 15. SINCE BY EARLIER PART OF THIS ORDER, WE HAVE HE LD THAT IN THE PRESENT CASE THE REVENUE COULD NOT ESTABLISH THIS FACT T HAT NOTICE AS PER PROVISO TO SECTION 143(2) OF THE ACT WAS PROPERLY AND VALIDLY SERVED ON EITHER PARTNER OR AUTHORIZED REPRESENTATIVE OR MANAGER OF THE ASSESSEE PARTNERSHIP FIRM AS REQUIRED U/S 282(2)(A) OF THE ACT, AS EXISTED IN THE STATUTE PRIOR TO 31.08.2009 APPLICABLE FOR ASSESSMENT ITA-4979/DEL/2004 & 2 OTHERS 11 YEAR 1998-99, HENCE, GROUND NO.1 OF THE CROSS-OBJECTI ON OF THE ASSESSEE ALSO STANDS ALLOWED. 16. SINCE BY EARLIER PART OF THIS ORDER WE HAVE QUASH ED THE IMPUGNED ASSESSMENT ORDER DATED 30.03.2001 FOR ASSESSMENT YEAR 1998-99 BEING FRAMED WITHOUT VALID AND PROPER SERVIC E OF NOTICE AS PER PROVISO U/S 143(2) OF THE ACT, THE GROUNDS RAISED BY TH E REVENUE IN ITA NO.4934/DEL/2004 AND REMAINING GROUNDS OF THE CROSS-OB JECTION NO.68/DEL/2005 OF THE ASSESSEE HAVE BECOME ACADEMIC AND INFRUCTUOUS AND ACCORDINGLY, WE DISMISS THE SAME. 17. IN THE RESULT, THE ADDITIONAL LEGAL GROUND NO.7 OF THE ASSESSEES APPEAL AND GROUND NO.1 OF THE CROSS-OBJECTION OF THE ASSESSEE ARE ALLOWED AND THE IMPUGNED ASSESSMENT ORDER DATED 30.03.2 001 FOR ASSESSMENT YEAR 1998-99 IS QUASHED. REVENUES APPEAL AND OTHER GROUNDS OF CROSS-OBJECTION OF THE ASSESSEE ARE DISMISSED BEI NG INFRUCTUOUS. DECISION PRONOUNCED IN THE OPEN COURT ON 30.10.2015. SD/- SD/- (J. SUDHAKAR REDDY (J. SUDHAKAR REDDY (J. SUDHAKAR REDDY (J. SUDHAKAR REDDY ) )) ) ( (( ( CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG ) )) ) ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VK. COPY FORWARDED TO: - 1. ASSESSEE : M/S MOHAN DAIRY, M/S MOHAN DAIRY, M/S MOHAN DAIRY, M/S MOHAN DAIRY, SIYANA ROAD, BULANDSHAHR (U.P.). SIYANA ROAD, BULANDSHAHR (U.P.). SIYANA ROAD, BULANDSHAHR (U.P.). SIYANA ROAD, BULANDSHAHR (U.P.). 2. REVENUE : ASSISTANT COMMISSIONER OF INCOME TA X, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE BULANDSHAHR, U.P. CIRCLE BULANDSHAHR, U.P. CIRCLE BULANDSHAHR, U.P. CIRCLE BULANDSHAHR, U.P. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR