TaxTMI 
TaxTMI 
2011 (11) TMI 16
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....ified and is not an illegality. The tribunal has erred in relying upon the judgment of the Bombay High Court in Shirish Madhukar Dalvi versus Assistant Commissioner of Income Tax, [2006] 287 ITR 242, whereas there is a contrary binding judgment of the jurisdictional Delhi High Court in ITA No. 411/2004 dated 16th August, 2004 titled Commissioner of Income Tax versus N.K. Parwanda. (4) The direction of remit to the Assessing Officer is a futile exercise as no material or evidence was found in the alleged search. 2. On the first contention, the tribunal in the impugned order in paragraph 3 has recorded as under: "3. In ground No. 1, the grievance of assessee is that assessment order framed under sec. 158-BC dated 28.11.1997 is invalid because no search in the case of assessee was ever conducted. Learned DR at the time of hearing produced a copy of the warrant of authorization exhibiting the search action taken on the premises of the assessee. He also produced the copy of the punchnama. In view of these documents, it cannot be said that no search was carried out at the premises of the assessee. Therefore, this ground of appeal is also rejected." 3. The appella....
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....venue had not placed on record any postal receipt for service of the notice or an affidavit or statement of the process server for having served the said notice. However, the tribunal has held that the notice on the basis of preponderance of probabilities was served on the appellant, inter alia, recording as under:- "10..........From perusal of the copy of the notice dated 17.10.1997 available at page 8 of the paper book filed by the revenue, it reveals that signatures of recipient are available at the bottom of this notice. The recipient had received it on 23.10.1997. The name of the recipient is not discernible. It is quite difficult to ascertain who has received this notice. The department is unable to produce copy of the acknowledgement or postal receipt exhibiting the issue of notice before us at the time of hearing. The second circumstance produced by the department in support of its version that notice was issued and served upon the assessee is the copy of letter written by the CAs from Thakur Vaidyanath Aiyer & Co., Shri AK Mishra is the person who delivered this letter to the Assessing officer. The third evidence is the copy of the notice dated 24.10.1997. It was r....
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.....10.1997. Thus, we infer that a notice was duly served upon the assessee under sec. 158-BC of the Act. Though we are satisfied that notice was served upon the assessee but even if there is any irregularity in service we would be setting aside the issue to the file of the Assessing officer on merit because the additions have not been made on the basis of the seized material. We would discuss this issue later on in the order." 7. We have considered the aforesaid reasoning by the tribunal and do not find them to be perverse. The view taken by the tribunal is reasonable and justified keeping in view the facts of the present case. In this connection, we have examined the contentions and arguments raised by the appellant and the facts and the documents filed by the appellant. It has been noticed as under:- i. Notice dated 17th October, 1997 was served by hand and has been received and bears signature/initial, but the name of the recipient is not stated/mentioned. ii. By notice under Section 142 dated 24th October, 1997 the Assessing Officer had required the appellant assessee to furnish details as per the questionnaire attached. The questionnaire has been placed on record....
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....During the block assessment proceedings, the appellant had filed a letter dated 17th November, 1997, before the Assistant Commissioner of Income Tax (Central), Circle VIII, New Delhi, in connection with the block assessment proceedings. The said letter is detailed, consisting of 4 pages and refers to and tries to answer queries raised in the questionnaire attached to the notice under Section 142 of the Act dated 24th October, 1997. vii. The subject and first paragraph of the reply of the appellant dated 17th November, 1997, reads as under:- "Sub: Venad Properties (P) Ltd-Enquiry for the Block period 01.04.96 to 06.11.96 regarding Ref: your notice AC IT/CC8 dt.24.10.97 Please refer to the notice cited, which was passed on to us though sent to a wrong address. The registered office of the company is „Ushus, Jawahar Nagar, Trivandrum 695041, and the Managing Director Shri. S. Padmakumar is the only person duly authorized to act or speak on behalf of the company. It is requested that future correspondence, if any, may be addressed to him. A detailed note on the company, Management, operations and funding is enclosed as Annexure-I. The note inter alia answers many of the items i....
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..../151, Safdarjung Enclave, New Delhi-110029, the rented premises of the deponent. 6. That the deponent further states that the notice u/s 142(1) dated 24.10.1997 was also not received by it from or through M/s Thakur, Vaidyanath Aiyer and Company, Chartered Accountants and it had also never instructed them to represent the assessee company before any authority as the petitioner company had not even known (sic) them. 7. That the deponent further states that the notice u/s 158BC dated 17.10.1997 which is allegedly served either on 20.10.1997 or on 23.10.1997 on A K Mishra was never known to it. The petitioner company is also unaware who is Sri A K Mishra." With regard to this affidavit, it will be appropriate to highlight the following facts;- * * Notice under section 142 dated 24th October, 1997 was served on A.K. Mishra, and thereafter the appellant company had filed their reply. * * The notice dated 24th October, 1997, was addressed to the appellant company at their Delhi address, namely A-2/151, Safdarjung Enclave, New Delhi and was served on A K Mishra. The reply dated 17th November, 1996, quoted above clearly shows that this was replied from Thiruvanthapuram. Only ....
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....the notice is served or received by the party concerned and this is established/ proved, then the manner and mode of service is not relevant. 10. In Mahadev Govind Gharge v. LAO, (2011) 6 SCC 321, the Supreme Court has held;- "31. In Justice G.P. Singh‟s Principles of Statutory Interpretation (11th Edn., 2008), the learned author while referring to the judgments of different courts states (at p. 134) that procedural laws regulating the proceedings in court are to be construed as to render justice wherever reasonably possible and to avoid injustice from a mistake of the court. He further states (at pp. 135 and 136) that: "Consideration of hardship, injustice or absurdity as avoiding a particular construction is a rule which must be applied with great care. The argument „ab inconvenienti‟, said Lord Moulton, „is one which requires to be used with great caution‟." 32. The learned author while referring to the judgment of this Court in Sangram Singh v. Election Tribunal recorded (at p. 384) that: "while considering the non-compliance with a procedural requirement, it has to be kept in view that such a requirement is designed to facilitate justic....
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....re also expressed by the Supreme Court in State of Punjab v. Shamlal Murari [1976] 1 SCC 719, where it was held as under: "8. ... We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, tho‟ procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After all, courts are to do justice, not to wreck this end product on technicalities." 13. In the present case, as noted above, there is ample evidence and material that notice under section 158 BC was served/received by the appellant. There is implied, if not a direct admission by the appellant that the block assessment notice dated 17th October, 1997 was served in view of the reply by the appellant company dated 17th November, 1997 to the notice under Sectio....
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....edings was sought to be served at the address which was different from the address where the search was carried out. Notice was issued at the earlier or old address of the assessee, where he was not residing. Notice was accordingly returned with the remarks of the postal authorities, "addressee left". Thereafter, the Assessing Officer did not bother to send/issue fresh notice at the correct address. Subsequently, assessee attended the proceedings but maintained that he had not received the notice for block assessment. The High Court dismissed the appeal, inter alia, recording as under:- " On an appreciation of facts, which have been discussed in detail, the Tribunal has arrived at a conclusion that no notice under section 158BC of the Income Tax Act, 1961 was served upon the assessee. Hence, no interference is called for. Dismissed" 17. Thus, the finding of the High Court was that there was no evidence to show that the notice under Section 158BC was served/recieved. In the present case, the finding of the tribunal and by us is to the contrary. 18. In view of our findings on the second contention, which are against the appellant-assessee and in favour of the Revenue....