TaxTMI 
TaxTMI 
2019 (5) TMI 747
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....lable on record. 5. The assessee on Ground No.1, challenged the validity of the assessment proceedings because no notice under section 143(2) was served upon the assessee company within the limitation period of 12 months as per proviso to Section 143(2) of the I.T. Act, 1961. It is, therefore, pleaded that assessment order dated 28.12.2011 is barred by limitation, illegal and bad in law and liable to be quashed. 5.1. The assessee challenged this issue before the Ld. CIT(A) as well. It was stated that first time notice under section 143(2) was served upon the assessee company on 07.03.2011 (Dated 28.02.2011) scheduling the case for hearing on 09.03.2011. It was submitted that since assessee company had filed its income tax return on 29.09.2009, therefore, as per law, statutory notice under section 143(2) of the I.T. Act, 1961 should have been served at any time within the period of six months from the end of the financial year ending 31.03.2010 i.e., on or before 30.09.2010. It was pleaded that notice dated 28.02.2011 having been served beyond the statutory period prescribed in law, was barred by limitation, rendering the assessment proceedings and assessment order bad in law. The....
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....ress of the assessee is mentioned at 3, Tansen Marg, Bengali Market, New Delhi. Such documents are notices under section 143(2), notice under section 156, notice under section 115WE(2), assessment orders under section 143(3) for various years. It was, therefore, submitted that A.O. failed to serve notice under section 143(2) at the correct address of the assessee as given in the return of income. The A.O. has not rebutted explanation of assessee and affidavit filed of the Managing Director. The assessee, therefore, submitted that since no notice under section 143(2) have been served upon the assessee company within the prescribed time, therefore, entire assessment order is illegal and bad in law and liable to be quashed. 6. The Ld. CIT(A), considering the explanation of assessee and material on record, decided this issue against the assessee. His findings in the Order in paras 10 to 10.2 are reproduced as under : "10. I have carefully considered the facts of the case in the light of the submission made by the appellant, the Remand report by the AO and rejoinder thereto by the appellant company, and applicable law in the matter. In view of the same, my decision on various ground....
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.... one of the premise of the appellant, and there is no evidence of return of the same by postal department, the proceedings cannot be treated as bad in law, merely on account of the defect in the notice of mentioning some other address of appellant compared to the returned address, while both premise were in appellant's possession. In view of this, the Ground no. 1 is decided against the appellant and accordingly the case shall be decided on merit on various other grounds raised by the appellant. 7. Learned Counsel for the Assessee reiterated the submissions made before the authorities below. He has referred to PB-1 which is return of income filed for assessment year under appeal on 29.09.2009. PB-103 is notice under section 143(2) dated 28.02.2011. PB-104 is reply of assessee before A.O. in which assessee objected to the legality of the assessment proceedings because notice under section 143(2) was barred by time and without jurisdiction. The assessee also pleaded in the reply that in case A.O. has any evidence against the assessee of service of notice, the same may be provided to the assessee. PB-106 is affidavit of Shri Rakesh Jain, Director of the assessee company denying....
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....3(2) should have been served at any time within the period of six months from the end of the financial year ending on 31.03.2010 i.e., on or before 30.09.2010. The proviso to Section 143(2) provides that "no notice under this clause shall be served upon the assessee, after expiry of six months from the end of the financial year in which the return is furnished." The Hon'ble Delhi High Court in the case of CIT vs. Lunar Diamonds Ltd., [2006] 281 ITR 1 (Del.) held as under : "Service of notice - burden of proof - According to the assessee, in terms of section 143(2) of the Act, the notice ought to have been served on it within a period of one year and in any case before November 30, 1996. Since that was not done, the proceedings initiated against the assessee were not in accordance with law - Before the Assessing Officer, this issue was not directly raised but before the Commissioner of Income-tax (Appeals) (CIT (A)), it was contended by the assessee that it had not received any notice under section 143(2) of the Act by registered post - Tribunal rightly held that under these circumstances, the burden was upon the appellant to prove that notice was served upon the assessee with....
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.... that it was served upon the assessee because the original notice did not return back to the Revenue. Therefore, there is a presumption of service of notice upon assessee within the period of limitation. The Ld. D.R. also filed PAN data to show that the addresses of Karol Bagh and Bengali Market both have been mentioned in the PAN data. The Ld. D.R. also contended that refund was generated at the same address of Gurudwara Road, Karol Bagh and even intimation under section 143(1) have been issued at the same address of Gurudwara Road. Learned Counsel for the Assessee, however, filed copy of the sale deed to show that property at Gurudwara Road Karol Bagh have been sold by the Managing Director of the assessee company on 25.02.2010. Therefore, there is no question of service of notice upon assessee at Gurudwara Road, Karol Bagh as is stated by the A.O. in the remand report. The Ld. D.R. contended that since PAN data has not been changed by the assessee, therefore, there is a presumption that notice under section 143(2) have been served earlier upon the assessee. Such contention of the assessee have been negated by the Hon'ble Delhi High Court in the case of Atlanta Capital Pvt. Ltd....
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....and such address is also disclosed in the returns of income filed for A.Ys. 2001-2002 to 2011- 2012. Even statutory notices have been issued by the A.O. at the same address for preceding assessment years and subsequent assessment years. The A.O. also passed the assessment orders for different years under section 143(3) at the address given at 3, Tansen Marg, Bengali Market, New Delhi. Therefore, assessee has been consistently disclosing the address to the Revenue Department for the purpose of service and communication at 3, Tansen Marg, Bengali Market, New Delhi and this fact is also admitted by the A.O. Therefore, merely notice under section 143(2) for this year have been issued as per PAN data would not be relevant. The A.O, therefore, deliberately did not issue notice under section 143(2) at the address available to the Revenue Department on their record at 3, Tansen Marg, Bengali Market, New Delhi. Therefore, there is no question of service of the notice at Gurudwara Road, New Delhi. The Ld. CIT(A) agreed with the explanation of assessee that notice under section 143(2) should have been issued at 3, Tansen Marg, Bengali Market, New Delhi, but, ultimately, noted that Counsel for....