TaxTMI 
TaxTMI 
TaxTMI 
2016 (2) TMI 830
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....spite the fact that the appellant had mentioned that no notice u/s 143(2) of the Act was served on it. It may be mentioned that the AO has held that the notice was served on the appellant within the statutory period without providing sufficient material to the appellant and purely on the basis of assumptions, surmises and conjectures. 2. The learned Commissioner of Income Tax (Appeals) erred in fact and in law in confirming the action of the Assessing Officer in again disallowing loss incurred in the business of transportation of goods and assessing Rs. 72,000/- as income of the appellant applying provision of section 44AE of the Act and thus making the addition of Rs. 2,48,392/- on this count. The learned Commissioner of Income Tax (Appeals) as well as the AO failed to appreciate the fact that the appellant has been maintaining all the books of accounts required to be maintained under the Act and has also got the accounts audited and full details of income earned and expenses incurred have been given to the AO. 3. The learned Commissioner of Income Tax (Appeals) erred in fact and in law in confirming the action of the Assessing Officer in disallowing depreciation of Rs....
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....f Posts did not contain the address of the assessee. The AO did not accept the assessee's objections stating that Department of Post accepts the letters sent through RPAD which contain full address, however, acknowledgement/receipt issued by them contains only the name of the person and place. The objections raised by the assessee in respect of service of notice u/s.143(2) were not accepted by the AO. 4. On appeal preferred by assessee, the Ld. CIT(A) also did not accept the assessee's ground that notice u/s.143(2) was not served within the prescribed time. 5. Thereafter, the assessee carried the matter before the ITAT. The ITAT, vide order dated 23rd March 2005 passed in ITA No.6534/M/1999, observed that the AO had rejected the assessee's claim without giving proper opportunity to examine the papers and letter issued by the postal authorities. Under the circumstances, the ITAT referred the issue to the file of the AO with a direction to supply evidence including the letter issued by Postal authorities to the assessee and thereafter, pass a fresh assessment order. 6. In pursuance of ITAT's direction, the AO re-initiated the assessment proceedings. During the asse....
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.... deemed to be served upon the assessee in due course. 9. On the other hand the contentions raised by the assessee are that no such presumption can be made regarding service of notice sent through registered post. The assessee had never received the alleged notice dated 14.11.95. The only notice received u/s 143(2) was notice dated 18.9.96 which was time barred. The assessee had admitted the service of noticed dated 18.11.96. Had the earlier notice been received, then the assessee could have admitted the service of the said notice also. That the burden was upon the department to establish that the service was done on the assessee within the specified statutory period of 12 months. The assessee had filed objections that no alleged notice dated 14.11.95 had been received by it. That since the assessee had challenged the service of the notice; it was on the department to specifically prove as to on which date the notice was served and upon whom served. 10. It is to be noted that section 143(2) of the Act requires that where return has been filed by an assessee, if the Assessing Officer considers it necessary or expedient to ensure that the assessee has not understated the income, or ....
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....o which the communication referred to in sub-section (1) may be delivered or transmitted to the person therein named. Explanation.-For the purposes of this section, the expressions "electronic mail" and "electronic mail message" shall have the meanings as assigned to them in Explanation to section 66A of the Information Technology Act, 2000 (21 of 2000)." 12. In view of the above provision, the service of notice by post is a valid service in terms of the provisions contained in Section 282(1) of the Act. The Hon'ble Delhi High Court in the case of CIT Vs. Yamu Industries Limited(2008) 306 ITR 309 (Del) has examined the above provisions and has held that the requirement of secton 282 of the Act is that notice may be served upon the person named therein, either by post or if it were a summons issued by a Court under the Code of Civil Procedure. The Hon'ble Delhi High Court thereafter further analysed the provisions of Order V, rule 19A of Code of Civil Procedure, which provides for simultaneous issue of summons for service by post in addition to personal service. The said rule 19A to order V CPC, as it stood, before it was omitted vide CPC(Amendment)Act 1999 w.e.f.1.7.2002, is r....
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....tion of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court. (2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and where he is such an officer, the summons may be sent to him in such manner as the Court may direct. (3) The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court: Provided that the service of summons under this sub-rule shall be made at the expenses of the plaintiff. (4) Notwithstanding anything contained in sub....
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.... the court by which it is issued, whether within or without the State, either by one of its officers or by post or by such courier service as may be approved by the High Court, by fax message or by electronic mail service or by any other means as may be provided by the rules made by the High Court to any court (not being the High Court) having jurisdiction in the place where the defendant resides. HIGH COURT AMENDMENTS Rule 21-A BOMBAY, DADRA AND NAGAR HAVELI.- The following shall be inserted: "Rule 21-A. Service of summons by prepaid post wherever the defendant may by residing if plaintiff so desires.- Notwithstanding anything in the foregoing rules and whether the defendant resides within the jurisdiction of the Court or not, (the Court may, in addition to or in substitution for, any other mode of service), cause the summons to be addressed to the defendant at the place where he is residing, (Or where he ordinarily carries on business) and Sent to him by registered post, prepaid for acknowledgement, provided that at such place there is a regular daily postal service. An acknowledgement purporting to be signed by the defendant shall be deemed by the Court issuing the s....