ACIT, Meerut V. M/s. Sonal Industries (P) Ltd., Meerut

ITA 5677/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58780 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2006-2007
• Appeal Filed On: 19-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S MOHANTY
• Assessee Lawyers: V K GOEL
• Keywords: Assessment record; Reassessment proceedings
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) SHRI I.P. BANSAL, JUDICIAL MEMBER AND BEFORE SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.5677/DEL./2011 (ASSESSMENT YEAR : 2006-07) ACIT, CIRCLE 2, VS. M/S. SONAL INDUSTRIES LTD., MEERUT. ROORKEE ROAD, MODIPURAM, MEERUT. (PAN : AACCS0048M) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI V.K. GOEL, ADVOCATE REVENUE BY : SHRI S. MOHANTY, DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE ASSESSEE EMANATES FROM THE ORDER OF CIT (APPEALS), MEERUT DATED 30.09.2011 FOR THE ASSESSME NT YEAR 2006-07. THE GROUNDS OF APPEAL READ AS UNDER :- (I) WHETHER IN THE FACTS & CIRCUMSTANCES OF THE C ASE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND FACTS OF THE CASE IN ANNULLING THE RE-ASSESSMENT PROCEEDINGS MERELY ON T HE GROUND OF SERVICE OF NOTICE IGNORING THE PROVISIONS OF SECTIO N 292BB OF THE IT ACT 1961 WHICH PRECLUDES THE ASSESSEE FOR RAISING S UCH OBJECTIONS AFTER COMPLETION OF THE ASSESSMENT PROCEEDINGS. (II) WHETHER IN THE FACTS & CIRCUMSTANCES OF THE C ASE LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS JUSTIFIED IN LAW IN AND CIRCUMSTANCES OF THE CASE BY HOLDING THAT THERE WAS NO SERVICE OF NOTICE IGNORING THE FACTS THAT NOTICE WAS SENT BY SPEED POST AND IT WAS NOT RECEIVED BACK WHICH IS DEEMED SERVICE OF NOTICE AS IN HELD I N THE FOLLOWING JUDGMENTS . ITA NO.5677/DEL./2011 2 RAMESH KHOSLA VS. ITO & ANR. (P&H) 155 ITR 556 CAPITAL GEM OVERSEAS (P) LTD. VS. ITO (IT AT DELHI ) 101 ITD 117 (III) WHETHER LD. CIT(APPEALS) WAS JUSTIFIED IN AC CEPTING THE VIEW OF THE ASSESSEE IGNORING THAT FACT THAT NOTICE WAS SER VED THROUGH SPEED POST AND DULY ENTERED IN DISPATCH REGISTER, THE ASS ESSMENT PROCEEDINGS COULD NOT BE STRUCK DOWN ONLY ON THE BA SIS OF CLAIM THAT NOTICE WAS NOT SERVED. THIS ALSO GETS SUPPORT FROM THE FOLLOWING CASES:- ' ITO VS. GURINDER KAUR - ITAT DELHI 102 ITD 189' (IV) IN THE FACTS AND CIRCUMSTANCES OR THE CASE, T HE ORDER OR THE COMMISSIONER OR INCOME TAX (APPEALS) MAY BE SET ASI DE AND THAT OF THE AO RESTORED. 2. IN THIS CASE, THE RETURN OF INCOME WAS FILED ON 25.11.2006 DECLARING INCOME RS.3,15,710/-. THE RETURN WAS PROCESSED U/S 143(1) OF THE INCOME-TAX ACT, 1961, ON 04.03.2008. THE CASE WAS SELECTED FO R SCRUTINY AND THE ORDER WAS FINALIZED U/S 143(3) ON 29.12.2008. THE LEARNE D DR SUBMITTED THAT THE CIT (A) IS NOT JUSTIFIED ON THE FACTS AND CIRCUMSTA NCES OF THAT CASE IN ANNULLING THE REASSESSMENT PROCEEDINGS MERELY ON TH E BASIS OF SERVICE OF THE NOTICE IGNORING THE PROVISIONS OF SECTION 292BB OF THE ACT. THE PROVISIONS OF SECTION 292BB PRECLUDE THE ASSESSEE FOR RAISING SUC H OBJECTIONS AFTER COMPLETION OF THE ASSESSMENT PROCEEDINGS. THE CIT (A) WAS NOT JUSTIFIED IN HOLDING THAT THERE WAS NO SERVICE OF NOTICE IGNORIN G THE FACTS THAT NOTICE WAS SENT BY SPEED POST AND IT WAS NOT RECEIVED BACK WHI CH DEEMED TO BE SERVED ON THE ASSESSEE. FOR THIS PROPOSITION, HE RELIED ON T HE DECISION OF RAMESH KHOSLA VS. ITO 155 ITR 556 (P&H) AND CAPITAL GEM OVERSEA S PVT. LTD. VS. ITO 101 ITD 117. LD. DR ALSO PLEADED THAT THE CIT (A) IS NOT JUSTIFIED IN ITA NO.5677/DEL./2011 3 ACCEPTING THE ASSESSEES CONTENTION THAT NOTICE WAS NOT SERVED ON THEM. THE NOTICE WAS SERVED BY SPEED POST AND IT IS DULY ENTE RED IN THE DISPATCH REGISTER. THE CIT (A) IS NOT JUSTIFIED IN STRUCK DOWN THE ASS ESSMENT ON THE BASIS THAT NOTICE WAS NOT SERVED. FOR THIS, LD. DR RELIED ON THE ORDER OF ITO VS. GURINDER KAUR 102 ITD 189 (ITAT-DEL.) AND SHE PLE ADED THAT THE ORDER OF THE CIT (A) DESERVES TO BE SET ASIDE. 3. ON THE OTHER HAND, THE LEARNED AR RELIED ON THE ORDER OF THE CIT (A) AND PLEADED THAT THE NOTICE CLAIMED TO HAVE BEEN IS SUED TO THE ASSESSEE WAS NEVER RECEIVED BY THE ASSESSEE. THE CIT (A) HAS IN SPECTED THE RECORDS AND THEN ONLY ANNULLED THE ASSESSMENT. HE RELIED ON TH E ORDER OF THE CIT (A). 4. WE HAVE HEARD BOTH THE SIDES. THE CIT (A) HAS A NNULLED THE ORDER BY HOLDING AS UNDER :- I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORDE R, AR'S SUBMISSIONS AND THE AO'S REPORT. I HAVE ALSO INSPEC TED THE ASSESSMENT RECORDS. THE AO HAS STATED THAT SERVICE OF NOTICE U/S 143(2)/142(1) IS ENTERED AT SERIAL NO. 1720 DATED 1 9.10.2010 OF THE DISPATCH REGISTER. IT HAS ALSO BEEN STATED THAT SHRI O.P. GUPTA, AR OF THE ASSESSEE, APPEARED DURING ASSESSME NT PROCEEDINGS IN COMPLIANCE TO STATUTORY NOTICES. THE INSPECTION OF ASSESSMENT RECORDS REVEALS AS UNDER: I. ORDER DATED 29.12.2008 UNDER SECTION 143(3) WAS PASSED ON 29.12.2008 WHICH IS ENTERED IN THE ORDER SHEET. BEFORE THIS DATE SHRI O.P. GUPTA, ADVOCATE ATTENDED ON SEV ERAL OCCASIONS, WHICH IS ALSO ENTERED IN THE ORDER SHEET . COPIES OF 6 PAGES OF ORDER SHEET ARE MADE PART OF THIS ORD ER AS A1-6. ITA NO.5677/DEL./2011 4 II. A PAGE WHICH IS CAPTIONED 'REASONS UNDER SECTIO N 148 IS FOUND ON THE FILE. IT DOES NOT HAVE ANY DATE. A COP Y OF THE SAME IS MADE PART OF THIS ORDER AS A-7. III. A NOTICE U/S 148 DATED 12.3.2010 IS FOUND ON T HE FILE. IT DOES NOT HAVE ANY ACKNOWLEDGEMENT OF RECEIPT BY ANYBODY. A COPY OF IT IS MADE PART OF THIS ORDER AS A-8. IV. A NOTICE U/S 143(2) DATED 15.10.2010 IS FOUND ON THE FILE. IT ALSO DOES NOT HAVE ANY ACKNOWLEDGEMENT OF RECEIP T BY ANYBODY. A COPY OF IT IS MADE PART OF THIS ORDER AS A-9. V. THE REASSESS1ENT ORDER DOES NOT SHOW WHETHER AN Y NOTICE WAS SERVED ON THE ASSESSEE. HAVING CAREFULLY GONE THROUGH THE RECORDS, I FIND THAT AFTER COMPLETION OF ORIGINAL ASSESSMENT ON 29.12.2008, TH ERE IS NO EVIDENCE OF SERVICE OF ANY NOTICE UNDER SECTION 148 OR 143(2). SHRI O.P. GUPTA, ADVOCATE, HAS FILED AN AFFIDAVIT T O SAY THAT HE NEVER RECEIVED ANY NOTICE AFTER THE COMPLETION OF T HE ORIGINAL ASSESSMENT. THE AO, BY HIS OWN ADMISSION, HAS NOT S ERVED ANY NOTICE U/S 148. IN HIS REPORT, HE HAS ONLY STATED T HAT A NOTICE U/S 143(2)/142(1) WAS SERVED FOR WHICH HE HAS NO UNMIST AKABLE EVIDENCE. PERUSAL OF THE REASSESSMENT ORDER UNDER A PPEAL AND THE INSPECTION OF RECORDS UNMISTAKABLY SHOW THAT NO NOT ICE U/S 148 WAS SERVED. THE ORDER IS, THEREFORE, ANNULLED. WE HAVE ALSO PERUSED THE ANNEXURES TO THE ORDER OF THE CIT (A). FROM THE NOTICE U/S 148 DATED 12.03.2010 PLACED AT PAGE A-10 OF THE PAPER BOOK, WE FIND THAT THERE IS DISPATCH NUMBER OF 2115. THE CI T (A) HAS ACKNOWLEDGED THAT NOTICE U/S 148 DATED 12.03.2010 WAS FOUND ON R ECORD BUT THE ACKNOWLEDGEMENT RECEIPT WAS NOT AVAILABLE. THE CIT (A) HAS ALSO RECORDED THAT REASONS RECORDED FOR ISSUING NOTICE U/S 148 WA S ALSO FOUND ON FILE. THE COPY OF WHICH IS PLACED AT A-7 AS ANNEXURE TO THE O RDER OF THE CIT (A). HOWEVER, THE CIT (A) HAS NOT GIVEN ANY FINDING RECO RDING THE ENTRY OF THE ITA NO.5677/DEL./2011 5 DISPATCH NO.2115 ON THE FACE OF NOTICE U/S 148 OF I NCOME-TAX ACT. IN OUR CONSIDERED VIEW, THE CIT (A) SHOULD HAVE GIVEN A FI NDING ON THE DISPATCH OF THE NOTICE WHERE THE DISPATCH NUMBER IS MENTIONED O N THE FACE OF THE NOTICE ITSELF. NON-AVAILABILITY OF THE ACKNOWLEDGEMENT OF THE RECEIPT CANNOT BE THE SOLE BASIS ON WHICH THE ORDER MADE CAN BE ANNULLED. THE FACT THAT NOTICE WAS NOT SERVED ON THE ASSESSEE HAS TO BE ESTABLISHED BY CONSIDERING ALL RELEVANT FACTS. THE DISPATCH NUMBER ON FACE OF NOTICE IS A RELEVANT FACT. ONCE THE NOTICE HAS BEEN ISSUED AT THE CORRECT ADDRESS BY SP EED POST AND SAME HAS NOT BEEN RECEIVED BACK THEN IT WILL BE DEEMED TO BE SER VED. THEREFORE, CIT (A) IS DIRECTED TO DECIDE THE ISSUE AFTER TAKING ALL THESE RELEVANT FACTS INTO CONSIDERATION. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 29 TH DAY OF FEBRUARY, 2012. SD/- SD/- (I.P. BANSAL) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 29 TH DAY OF FEBRUARY, 2012 /TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), MEERUT. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.