TaxTMI 
TaxTMI 
2013 (7) TMI 15
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....ing substantial question of law for hearing: "Whether on the facts and in the circumstances of the case, the Tribunal was justified and correct in law in declaring the assessment order as illegal and void ab initio and in canceling the same by holding that no notice under Section 143(2) or 142(1) of the Income Tax Act, 1961, was served on the respondent and is not the said decision per verse?" 3. We have heard Dr. A.K. Saraf, learned Senior counsel, for the appellant, and Mr. R. Goenka, learned counsel, for the respondent. 4. Before coming to the merit of the order, which stands impugned in this appeal, the material facts, giving rise to this appeal, may, in brief, be set out as under: (i) For the assessment year 2002-2003, the assessee-respondent filed her return of income, on 26.03.2003, showing total income at Rs.1,47,000/- and the same was processed, under Section 143(1) of the Act, on 03.09.2003. As the assessee-respondent's case was selected for scrutiny, notices, according to the Revenue, were issued to the assessee-respondent under Sections 143(2) and 142(1) of the Act. The said notices, according to the Assessing Officer, were served on the assessee on 01.03.20....
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....e Act, was illegal and untenable in law. (v) The CIT(A) did not, however, agree with the assessee-respondent's contention and rejected the same by observing, in brief, thus: As per the return filed by the assessee, on 26.03.2003, for the year 2002-2003, PAN No. ACPPG 9406M and the assessment record, including confidential folder, shows that the computer generated notice, under Section 143(2), with PAN No. AGPG 9406 M, dated 02.12.2003, was issued, which carried the name and address of Smt. Gita Rani Ghosh, A.K. Azad Road, Rehabari, Guwahati; whereas PAN Number of the assessee-respondent was not the same and, thus, the notice, generated by the computer, was different from what ought to have been given to the appellant (i.e., the appellant-respondent herein) and, therefore, on the same day, a manually generated notice, under Section 143(2), for the assessment year 2002-2003, was made in the name of the appellant (i.e., the assessee-respondent) and that the later notice was served on the appellant (i.e., the assessee-respondent herein) on 01.03.2004. The acknowledgement, in respect of the notice issued under Section 143(2) and 142(1), dated 02.12.2003, bore the signature of the ass....
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....ointed out above, let us, now, come to the learned Tribunal's order, which stands impugned in this appeal. In this regard, it is of immense importance to note that the learned Tribunal has clearly observed, setting out the case of the assessee-respondent, that so far as assessee was concerned, it had claimed to have received notices under Section 143(2) and 142(1) of the Act, both dated 02.12.2003, bearing PAN No. AGNPG 1745K and the said notices were addressed to Smt. Gita Rani Ghosh, Flat No.B-2, Shankar Madhab Housing Society, PO. Pandu, Pandu, Guwahati, Assam; whereas the Revenue had sought to support the findings of the CIT(A) on the basis of copies of notices, under Sections 143(2) and 142(1), both issued, on 02.12.2003, bearing PAN/GIR No. ACKPG 5721 G and addressed to Smt. Gita Rani Ghosh, Prop. M/s. Ghosh Brothers, Soni Apartment, Ulubari, Barthakur Mill Road, Guwahati, as well as acknowledgement receipt bearing signature of the assessee-respondent on having received the notices under Section 143(2) and 142(1), dated 02.12.2003 relating to assessment year 2001-2002 and not for assessment year 2002-2003. 8. Having observed what have been indicated above, the learned Trib....
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....recorded, as indicated by the learned Tribunal, was a question of fact and this finding cannot be said to have been reached by ignoring any material fact or without any rationale or reasonable cause having been assigned therefor. 11. Situated thus, the finding of fact, so recorded by the learned Tribunal, cannot be described as perverse. This apart, when the assessee-respondent had denied receipt of the notice for the assessment year 2002-2003, it was for the Revenue to prove, by brining materials on record including witnesses, if any, that the notices sent to the assessee-respondent were for the assessment year 2002-2003. This was, however, not done. 12. Coupled with the above, the learned Tribunal, we find has also gone through various entries mentioned in the order sheet and pointed out as follows: "7.5. So far as the present case is concerned, it is noted that the AO has mentioned the PA No. as ACPPG 9406M but seems to have cancelled the same later on because another PA No.ACKPG 5721G has been mentioned. 7.6. The first entry in the order sheet dated 3rd September, 2003, is with respect to furnishing of return of income on 26th March, 2003, showing total income at Rs....
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....out admitting that it was the second set of notice which was served upon the assessee, there is another reason for not accepting the revenue's case and the reason is that after AO had come to know of having issued notices in wrong name and corrected the same by issuing second set of notices, then this fact could have been mentioned in the order sheet which is not the case. Similarly, the fact of service of notice has also not been mentioned in the order sheet meaning thereby that in a nutshell, there is no evidence with the revenue to establish its case that it was the second set of notice which was served upon the assessee as per acknowledgement (copy placed at page 10 of the revenue's paper book). 7.9. In addition to above, we, even at the cost of repetition, would again like to refer to the settled principles of law with respect to establishment of service of a notice which is on the revenue and since in the present case, revenue has not discharged its onus by any cogent material, the assessee's objection that it was served on 1st March, 2004, only with the first set of notice, which were not relating to the assessee has to be accepted. 7.10. Having held as above, we are f....