Assessment quashed where s.143(2) notice issued but not served, so jurisdiction lacking and s.292BB proviso inapplicable

ITAT, Pune rejected the appellant's contention that the CIT(A) antedated his order, dismissing that ground. However, the Tribunal found the notice under s.143(2) dated 08-09-2010 was issued but not served, and no valid service occurred before the cut-off; proviso to s.292BB did not save jurisdiction. Because service (not mere issue) of s.143(2) notice is a jurisdictional requirement and was absent, the AO lacked jurisdiction to complete the assessment and the assessment order was quashed. Decision in favour of the assessee.

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Issues Involved:
1. Whether the appellate order passed by the CIT(A) is antedated and hence null and void.
2. Whether the assessment order is null and void due to non-service of notice under Section 143(2) of the Income-tax Act, 1961 within the prescribed time limit.

Detailed Analysis:

Issue 1: Antedated Appellate Order
The assessee contended that the appellate order dated 25-03-2013 by the CIT(A) was actually passed in July 2013, making it antedated and therefore null and void. The assessee supported this claim with an affidavit stating he appeared before the CIT(A) in June and July 2013 and filed applications during that period. The Tribunal directed the Departmental Representative (DR) to obtain comments from the CIT(A), who confirmed that the order was passed on 25-03-2013 and reported as such in the monthly D.O. letter to the Chief Commissioner of Income Tax (CCIT) in April 2013.

The Tribunal examined the dispatch register and found that several orders passed in March 2013, including the impugned order, were dispatched in July 2013 due to the CIT(A)'s training commitments. The Tribunal also verified that the assessee's claim of meeting the CIT(A) in July 2013 was incorrect, as the CIT(A) was not present in the office during that period.

The Tribunal concluded that the appellate order was indeed passed on 25-03-2013 but dispatched late, which does not affect its validity. The Tribunal held that the allegation of antedating was unfounded and dismissed the first additional ground.

Issue 2: Non-Service of Notice under Section 143(2)
The assessee argued that the assessment order was invalid due to non-service of notice under Section 143(2) within the prescribed time limit. The Department contended that the notice was issued on 08-09-2010 but returned by postal authorities as the assessee was not residing at the address mentioned in the PAN database. The Department argued that the issuance of notice should be considered as compliance with the requirement of service.

The Tribunal noted that the assessee filed the return with a Pune address, whereas the notice was sent to a Solapur address. The Tribunal emphasized that the proviso to Section 143(2) requires the notice to be served within six months from the end of the relevant assessment year, i.e., by 30-09-2010. The Tribunal found that the notice issued on 08-09-2010 was returned, and no further notice was issued within the stipulated period.

The Tribunal held that 'issue' of notice is not equivalent to 'service' of notice, citing various judicial precedents, including the Hon'ble Supreme Court's decision in R.K. Upadhyaya vs. Shanabhai P. Patel, which distinguished between the two terms. The Tribunal also referred to Section 27 of the General Clauses Act, which allows for rebutting the presumption of valid service if the contrary is proved, as in this case.

The Tribunal rejected the Department's reliance on Rule 127 of the Income-tax Rules, which allows for service at the address given in the PAN database, as the notice was not actually delivered or served. The Tribunal further noted that the assessee had raised an objection to the non-service of notice before the completion of the assessment, invoking the proviso to Section 292BB, which negates the deemed service of notice.

The Tribunal concluded that the non-service of notice under Section 143(2) was a jurisdictional defect, rendering the assessment order null and void. Consequently, the Tribunal quashed the assessment order and did not delve into the merits of the case.

Conclusion
The appeal was partly allowed, with the Tribunal quashing the assessment order due to non-service of notice under Section 143(2) and dismissing the ground related to the antedated appellate order.

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