TaxTMI 
TaxTMI 
2016 (3) TMI 114
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....4), was not "the Assessing Officer" in terms of the jurisdiction order no. Addl.CIT/R-19/2005-06/356 dated 31.03.2006. 3. That the learned Commissioner of Income Tax(Appeals) erred in holding that the Assessing Officer passed by the Addl. CIT, Range 19, was valid, in exercise of the concurrent jurisdiction vested in her, when admittedly the assessment proceedings were initiated by Income Tax Officer, Ward 19(4) and there was no order u/s 127 of the I.T. Act transferring the case to the Addl. Commissioner. 4. That the learned Commissioner of Income Tax(Appeals) erred, after holding that "this estimation of income is without any basis and without any reasoning", in disallowing the business loss of Rs. 15,64,394/- and deduction of property tax of Rs. 37,528/-, when these were not even the subject matter of appeal before her. 5. That, at any rate, on the facts and circumstances of the case, the learned Commissioner of Income Tax(Appeals) erred in disallowing the business loss of Rs. 15,64,394/- and deduction of property tax of Rs. 37,528/-. 3. The facts in brief of the case as culled out from the orders of lower authorities and the assessment folder which ....
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.... prescribed under the law. He further submitted that the assessee had not been served any notice prior to the notice dated 20th August, 2009. He also submitted that in view of the order no. Addl.CIT/R-19/2005-06/356, dated 31.03.2006, the jurisdiction of the case of the assessee vested with the Asstt. Commissioner of Income Tax, Circle 19(1), New Delhi and the assessee was not aware of subsequent order vesting the jurisdiction of the case of the assessee with the Addl. Commissioner of Income Tax. In response to the letter of the Authorized Representative, the Addl. Commissioner of Income Tax replied that the first notice was issued to the assessee on 23.07.2008 which was sent through speed post and therefore, the first notice issued was well within one year of the filing of the return. She also explained that the jurisdiction to her was assigned under the order of concurrent jurisdiction. The Addl. Commissioner of Income Tax again fixed the case on 09.11.2009 through a notice issued under Section 143(2) of the Act. In response to which, the Authorized Representative again objected the assessment proceedings on both ground i.e. service of first notice as well as jurisdiction of Addl....
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....g Officer. Aggrieved, the assessee is before us with the present appeal. 4. As the assessee did not press ground nos. 4 and 5, the same are dismissed as not pressed. 5. 1 As regard to ground no. 1 of the appeal, ld. Authorized Representative of the assessee submitted that the notice alleged to be sent by the speed post at the address of the assessee, was not served. He further submitted that the Assessing Officer relying on the provisions of Section 27 of the General Clauses Act held that the mandatory notice under Section 143(2) of the Act was served on the assessee whereas the assessee had rebutted the presumption of service by categorically denying on affidavit that he had received the notice issued on 21.07.2008 by ITO, Ward 19(4), New Delhi. In support of his contention, he relied on the judgment of the Hon'ble Delhi High Court in the case of CIT Vs. Silver Streak Trading P. Ltd., (2010) 326 ITR 418 (Delhi) and CIT Vs. Messrs Lunar Diamonds Ltd., (2006) 281 ITR 1 (Del. ). 5.2 On the other hand, learned Sr. Departmental Representative relying on the findings of the lower authorities submitted that merely filing of an affidavit denying receipt of the letter sent through....
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....oviding for the addresses (including the address for electronic mail or electronic mail message) to which the communication referred to in sub-section (1) may be delivered or transmitted to the person therein named. Explanation.-..............................................................................." 7.2 It has been held by various courts that the service of notice by post include service by speed post as well. In the cases of CIT Vs. Silver Streak Trading P. Ltd., (supra) cited by the assessee, it was claimed by the assessee that the return of income was filed on November 30, 1997 and a notice under section 143(2) of the Act was issued by the Assessing Officer through speed post on November 28, 1998 but the assessee claimed that said notice was not ever received and a duplicate copy of notice dated October 21,1999 was received by the learned counsel of the assessee, who endorsed the office copy with the remark " time barred notice received" and this was followed by an affidavit by the assessee stating that it had not received any notice prior to the notice dated October 21, 1999. The Hon'ble Court held that in such a case onus was on the Revenue to show that th....
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....e the correct address was mentioned in the receipt issued by the postal authorities. Thus the cases cited by the assessee are distinguishable on facts. 7.5 In the case of Milan Poddar Vs CIT reported in [2012] 24 taxmann.com 27, the Hon'ble High Court of Jharkhand has dealt the issue of notice of service though speed post and rebuttable presumption of the service and held that when the dispatch has been proved by the receipt number of speed post and the notice has been sent at correct address, it is presumed that the notice was delivered to the assessee. The relevant paragraph of the judgement is reproduced as under: 14. From a bare perusal of the order-sheets, shown to us by the assessee, started from dated 24.10.2007, it is clear that in the ordersheet dated 24.10.2007, on the top of it, the name and address of the assessee was mentioned and thereafter it was ordered that notice under Section 143(2) be sent. The notice, in fact, was sent on 24/25.10.2007 and its receipt number is given in the order of the Assessing officer which is, receipt no. 4544 and "Speed post" number is also given which is EE875408254 IN, dated 25.10.2007. So far as dispatch of the notice under ....
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....nder :- 11. .... 12. ..... 13. ... 14. .... 15. .... 16. ... 17. .... 18. ... 19. ... 20. ... 21. ... 22. ... 23. ... 24. ... 25. ... 26. The aforesaid judgments lay down in no uncertain terms that, in terms of section 27 of the General Clauses Act, unless and until the contrary is proved by the addressee, service of notice is deemed to be effected at the time at which the letter would have been delivered in the ordinary course of business when it is sent to the addressee at his address by registered post. Details given in the assessment order as also receipt of speed post make it clear that all the conditions stipulated by section 27 of the General Clauses Act are satisfied and hence service of the impugned notice would be deemed to have been effected well before the expiry of time limit stipulated by section 143(2) as the said notice was sent several months before the expiry of period stipulated by the time provision of section 143(2). 27. Non-rebuttal of Statutory Presumption: The legal fiction created by section 27 of the Gener....
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....the assessee stands on a much stronger footing.( emphasis supplied) We are in full agreement with the reasons given by the Tribunal with respect to the interpretation given by the Tribunal on various issues decided by the Tribunal which we have quoted above. 7.7 Thus, we can summarize that for a valid service of notice following conditions should be fulfilled: (i) the notice should have been sent through any of the modes mentioned in section 282 of the Act (ii) The name and address should be correctly written over the notice and the envelope containing the notice and the envelope should be delivered to the postal authorities for service. (iii) The Revenue should show the receipt of postal authorities and/or tracking number of post office to establish valid dispatch of notice, (iv) If the notice is not returned then it shall be presumed that it was served validly. (v) The presumption can be rebutted by the assessee by filing evidences in support but the rebuttable by merely word of mouth of the assessee that he did not receive the notice are not sufficient for establishing rebuttal of presumption 7.8 Now when we revert back....
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....has failed to rebut the presumption that was raised against him about the due service of the notice u/s 143(2) of the Act. Hence, we hold that the Assessing Officer has complied the requirement of service of notice under Section 143(2) of the Act and notice dated 21.07.2008 was served validly. Accordingly, this ground of appeal is dismissed. 8. As regard to ground no. 2, the assessee has challenged the notice under Section 143(2) of the Act issued by Income Tax Officer, Ward 19(4), New Delhi which was not a valid notice as he was not the Assessing Officer in terms of the jurisdictional order bearing Order no. Addl.CIT/R-19 /2005-06/356, dated 31.03.2006, copy of which is placed at page 11 of the assesee's paper book. 8.1 Learned Authorized Representative of the assessee submitted that the return of income of the assessee was more than the limit prescribed for the jurisdiction of the Income Tax Officer. He drawn our attention to the order dated 31.03.2006 issued by the learned Addl. Commissioner of Income Tax specifying the jurisdiction. Learned Authorized Representative further relied on the judgment of the Hon'ble High Court of Delhi in the case of Sunworld Infrastructure Pv....
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.... of the case law relied upon by the assessee is not applicable over the facts of the case in hand, hence, this grounds of the assessee is dismissed. 9. In ground no. 3, the assessee has raised that there was no order under Section 127 of the Act transferring the case to the Addl. Commissioner of Income Tax in exercise of the concurrent jurisdiction vested in her. The learned Authorized Representative submitted that the order passed by the Addl. Commissioner of Income Tax is without jurisdiction. He further relied on the judgment of the Hon'ble Delhi High Court in the case of Valvoline Cummins Limited Vs. Deputy Commissioner of Income Tax & Others, (2008) 307 ITR 103 (Delhi). 9.1 On the other hand, learned Sr. Departmental Representative submitted that the order passed by the Addl. Commissioner of Income Tax was well within his jurisdiction and he distinguished the judgment in the case of Valvoline Cummins Ltd. (supra) stating that the said judgment was in respect of recovery proceedings initiated by the Deputy Commissioner of Income Tax subsequent to the completion of assessment by the Addl. Commissioner of Income Tax and therefore the facts of the case were not applicable to....