Income Tax Officer-1, Faizabad V. Sri Kashi Ram Verma, Faizabad

ITA 746/LKW/2013

• Counselvise Citation: 74623714 RSA 2013
• Duration Of Justice: 1 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 06-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 14-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARISH GIDWANI
• Assessee Lawyers: M P MISHRA

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.74 6 /LKW/2013 ASSESSMENT YEAR: 2009 10 ITO 1, FAIZABAD VS. SHRI KASHI NATH VERMA, RAJA DERA MARG, DEOKALI, FAIZABAD 224001. PAN:AALPV1985C (APPELLANT) (RESPONDENT) APPELLANT BY SHRI HARISH GIDWANI, SR. DR RESPONDENT BY SHRI M. P. MISHRA, ADVOCATE DATE OF HEARING 06/07/2015 DATE OF PRONOUNCEMENT 2 0 /08/2015 O R D E R PER A. K. GARODIA, A. M . THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER OF LEARNED CIT (A) I LUCKNOW DATED 26.08.2013 FOR A.Y. 2009 10. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: - 1. THE LD. CIT (A) I, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN ANNULLING THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER. NOTICE U/S 143 (2) DATED 19.08.2010 WAS DULY SERVED ON THE ASSESSEE WELL WITHIN TIME AS LIMITATION HAS BEEN PRESCRIBED UNDER THE PROVISO TO SECTION 143 (2) (II). ONE COPY OF NOTICE W AS SENT THROUGH REGISTERED POST ON 24.08.2010 AT THE ADDRESS TENDUA MAFI, BIKAPUR, FAIZABAD AND SECOND COPY OF THE NOTICE WAS DULY SERVED BY AFFIXTURE AT THE ADDRESS BY THE INSPECTOR OF THIS OFFICE ON 04.09.2010. 2. THE ORDER OF THE LD. CIT (A) I, LUCKN OW MAY BE SET ASIDE AND THE ORDER OF THE ASSESSING OFFICER MAY BE RESTORED. 2 3. LEARNED DR OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER AND LEARNED AR OF THE ASSESSEE SUPPORTED THE ORDER OF CIT (A). HE ALSO SUBMITTED THAT ON PAGES 37 TO 45 OF THE PAPER B OOK IS THE WRITTEN SUBMISSIONS FILED BEFORE CIT (A) AND THE SAME SHOULD BE CONSIDERED BY THE TRIBUNAL ALSO. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THE DECISION OF LEARNED CIT (A) IS ON THIS BASIS THAT THE NOTICE WAS REQUIRED TO BE SERVE D ON OR BEFORE 30.09.2010. HE HAS REFERRED TO THREE NOTICES. REGARDING FIRST NOTICE, HE HAS GIVEN A FINDING THAT THE SAME WAS SENT BY RPAD ON 24.08.2010 BUT NO EVIDENCE HAS BEEN BROUGHT ON RECORD BY THE A.O. TO SHOW THAT IT WAS ACTUALLY SERVED BEFORE 30.09 .2010. HE HAS FOLLOWED A JUDGMENT OF HONBLE DELHI HIGH COURT RENDERED IN THE CASE OF CIT VS. LUNAR DIAMONDS LTD., 281 ITR 1. IN THIS CASE ALSO, NOTICE U/S 143 (2) WAS SENT BY RPAD BUT THE ASSESSEE SUBMITTED AN AFFIDAVIT TO THE EFFECT THAT THE ASSESSEE DID NOT RECEIVE ANY NOTICE U/S 143 (2) BY REGISTERED POST. IN THE PRESENT CASE ALSO, AFFIDAVIT HAS BEEN FILED BY THE ASSESSEE BEFORE CIT (A) COPY AVAILABLE ON PAGES 19 TO 20 OF THE PAPER BOOK AND IT IS STATED IN THE AFFIDAVIT THAT THE ASSESSEE HAS NOT RECEIVE D THE NOTICE U/S 143 (2) DATED 19.08.2010 SAID TO HAVE SENT BY REGISTERED POST. HENCE THESE FACTS ARE SIMILAR. UNDER THESE FACTS, IT WAS HELD BY HONBLE DELHI HIGH COURT THAT WHEN THE ASSESSEE HAS FILED AN AFFIDAVIT STATING THAT IT HAD NOT RECEIVED THE NOT ICE, THE BURDEN WAS UPON THE DEPARTMENT TO PROVE THAT NOTICE WAS SERVED UPON THE ASSESSEE WITHIN THE PRESCRIBED TIME AND SINCE THE REVENUE HAD NOT PROVED ITS CASE IN THIS REGARD, THE TRIBUNAL WAS RIGHT IN SETTING ASIDE THE ASSESSMENT. IN THE PRESENT CASE A LSO, THE ASSESSEE HAS FILED AN AFFIDAVIT STATING THAT IT HAD NOT RECEIVED THE NOTICE WITHIN TIME, THE BURDEN WAS UPON THE DEPARTMENT TO PROVE THAT NOTICE WAS SERVED UPON THE ASSESSEE WITHIN THE PRESCRIBED TIME AND SINCE THE REVENUE HAD NOT PROVED ITS CASE IN THIS REGARD EXCEPT STATING OF SERVICE BY AFFIXTURE, WE FIND NO INFIRMITY IN THE 3 ORDER OF CIT (A) ON THIS ASPECT THAT NOTICE SENT BY RPAD WAS NOT SHOWN TO HAVE SERVED ON THE ASSESSEE. 5. NOW WE EXAMINE THE CLAIM OF THE REVENUE REGARDING SERVICE BY AFFIXTURE. IN THIS REGARD, THE FINDING OF CIT (A IS THIS THAT THERE IS NO MATERIAL AVAILABLE ON RECORD FOR SATISFACTION OF THE A.O. THAT THE CONDITIONS REQUISITE FOR THE APPLICATION OF ORDER V, RULE 20 OF CODE OF CIVIL PROCEDURE, 1908 EXISTED. LEARNED DR OF THE REVENUE COULD NOT CONTROVERT THIS CATEGORICAL FINDING OF CIT (A) AND THEREFORE, ON THIS ASPECT ALSO, WE FIND NO INFIRMITY IN THE ORDER OF CIT (A) BECAUSE LEARNED CIT (A) HAS REFERRED TO VA RIOUS JUDGMENTS AS PER WHICH, IT WAS HELD THAT SERVICE OF NOTICE BY AFFIXTURE IS NOT A VALID SERVICE IF IT IS IN ABSENCE OF MATERIAL ON RECORD ESTABLISHING THE EXISTENCE OF CONDITIONS REQUISITE FOR THE APPLICATION OF ORDER V, RULE 20 OF CODE OF CIVIL PROCE DURE, 1908. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEM BER DATED: 2 0 /08/2015 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR