AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2020 (4) TMI 847
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....al) has erred on facts as well as in law in dismissing the Appeal inspite of the fact that Department has no proof for service of notice U/s. 148. 2. The presumption of service under Clause 27 of the General Clauses Act, would not be available where the party has denied the service, as per Hon'ble Supreme Court as well as Hon'ble Delhi High Court Judgments which have neither the Learned Assessing Officer nor the Learned Commissioner of Income Tax (Appeal) referred nor this argument dealt with in their Orders, inspite of having been given in Written Arguments to both of them. 3. Dismissal of Appeal because nothing is stated on merits, is irrelevant when the issue before the Learned Assessing Officer, as per Income Tax Appellate Tribunal Orders and as argued by the assessee was service of notice under Section 148, question of merit will come only when the learned Assessing Officer passes this hurdles and shows the proof for service. It is, therefore, prayed that Orders of the Learned Commissioner of Income Tax (Appeal) may kindly be set aside and assessment quashed, the same being without service in time of preliminary and foundation notice u/s 148.....
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.... been carrying out the same business during the years under assessments and proceeded to estimate commission income at Rs. 25,00,000/-, Rs. 35,00,000/- & Rs. 45,00,000/- in AYs 2006-07, 2007-08 & 2008-09 respectively. 5. In AY 2006-07, AO also noticed from the record that assessee has given unsecured loan to M/s. Alpha Bhoj Ltd. and closing balance of M/s. Alpha Bhoj Ltd. was Rs. 45,50,000/- as on 31.03.2006 and thereby made addition of the same being income from undisclosed sources. In AY 2007-08, AO also made addition of Rs. 2,42,50,000/- on noticing from the record that assessee has given unsecured loan to M/s. Alpha Bhoj Ltd. and made the addition of Rs. 2,42,50,000/- which is the closing balance as on 31.03.2007 by treating the same as income from undisclosed sources and thereby completed the assessment. 6. Assessee carried the matter before the ld. CIT (A) by way of filing the separate appeals for AYs 2006-07, 2007-08 & 2008-09 who have confirmed the additions by dismissing the appeals. Feeling aggrieved by the orders passed by the ld. CIT (A), the assessee has come up before the Tribunal by way of filing the present cross appeals. 7. We have heard the ld. Authori....
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....05.06.2009. However, no return was filed in response to this notice u/s 148 also. Notice u/s 142(1) were also issued and served on the assessee on various dates. However no response was received from the assessee. A final opportunity was given to the assessee vide letter dated 22.09.2010 to appear on 29.09.2010. No one appeared on this date and no reply was filed with this office." 14. Perusal of the aforesaid narration given by the AO as to issuance of service of notice dated 05.06.2009 u/s 148 shows that it does not contain facts if the notice (supra) were ever served upon the assessee, it just contains the fact that notices u/s 148 were issued on 05.06.2009. When we further examine assessment record viz. order sheet prepared by the AO and dispatch register, no doubt copy of notices dated 05.06.2009 for AYs 2006-07 & 2007-08 is reportedly issued on 05.06.2009 vide dispatch register but the record is altogether silent if the said notices were served upon the assessee or received back served/unserved nor copy of acknowledgement from the postal authority acknowledging the receipt of notice is there on the file. It is settled principle of law that when the assessee has sp....
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.... "C) Accused has taken a defence that no notice was received by him. In support of his claim and contention, accused examined on Mr. Oil Bahadur Thapa as DW1 who stated in his evidence that he has been working as a gate keeper at T-l, Rajouri Garden, the residence of accused, for the last 10-11 years and he has not received any notice/document from Income Tax Department during 2006-10. This plea of DW1 is not sustainable at all on two counts. Firstly, DW1 failed to establish or bring any document on record to show that in fact he was working as gate keeper at the residence of accused during the relevant period. Sometimes, it may happen that a post man might have dropped the letter at the given address. But not again and again. A prudent post man is not supposed to deliver the parcel/letters (particularly sent through registered/speed post) to any person other than addressee after obtaining signature of that person. In his cross examination, DWl clearly stated that delivery of letter is made by the postman to the addressee only after taking his signature. As per section 27 of the General Clauses Act, 1897 the service shall be deemed to be effected if the s....
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....uirement of the assessing officer making a declaration/recording on the order sheet, in a case where a notice sent by registered post has not been received back unserved, specifying that the notice is deemed to have been served, the following are submitted: a. There is no such requirement in Section 282 or any other section of Income Tax Act. b. The Assessing Officer in the assessment order as well as the Ld. CIT(A) in the appellate order have unambiguously declared that the notice has been served. c. If the service of notice was to get invalidated merely because of the assessing officer's omission to right on the order sheets, that the notice is deemed to have been served, most of the assessments completed by the Income Tax Department would become invalid. These submissions are prayed to be taken on record and included in the order of the Hon'ble Bench." 18. When we examine the order sheet entries for AYs 2006-07 & 2007-08 prepared in due course of official duty by the AO, except for the fact that notices were issued on 05.06.2009, there is not a whisper even if the said notices were served upon the assessee. Identically worded order ....
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....to examine the postal authorities to prove that notice (supra) was duly served upon the assessee. But entire record maintained and produced by the Revenue is silent if service was actually affected on the assessee nor any service report or acknowledgment from the postal department has been brought on record. 23. Needless to say that during the first round of litigation the case was remitted back by the Tribunal to the AO to decide afresh if the notice (supra) was served upon the assessee on the basis of evidence available with the Revenue, however AO has decided this issue again on the fact that notice was dispatched vide order sheet entry and dispatch register on 05.06.2009 and has again not preferred to substantiate his finding with the evidence available, if any, rather reiterated findings returned in the original assessment. 24. So far as service of notice u/s 142 (1) upon the assessee for AY 2008-09 was concerned, again AO recorded in para 1 of the assessment order that, "notice u/s 142 (1) issued and served upon the assessee on various dates", however no such dates have been brought on record on which the service of notice was effected upon the assessee. 25. With the....
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....by the AO at any stage of the case. Order sheet entries prepared in the due course of official duties by the AO are self-speaking which shows that he has proceeded to frame the assessment on the basis of symbolic notice without having any follow up if the same was served upon and has nowhere taken the view that it is a case of "deemed service". Lastly, we are of the considered view that issue before the Bench is to be decided on the basis of facts and evidence on record and not on the basis of borrowed findings returned by ld. ACMM in judgment (supra). 29. Reliance placed by the ld. DR for the Revenue on the judgment passed by the Hon'ble Delhi High Court in the case of CIT vs. Yamu Industries Ltd. (supra) is also misplaced because it is nowhere the case of the AO at any stage of the assessment proceedings that he has proceeded to hold the service of notice on the assessee as "deemed service". Because there is not an iota of evidence on file if notice served upon the assessee was not received back within a period of 30 days of its issuance as neither record of postal authorities nor statement of any serving official of the postal department has come on record to prove that notic....
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....Act read with Order V rule 12 and Order III rule 6 of the Code of Civil Procedure,1908. Although there is change in the scheme of sections 147, 148 and 149 of the Act from the corresponding section 34 of the 1922 Act, the legal requirement of service of notice upon the assessee in terms of section 148 read with section 282(1) and section 153(2) of the Act is a jurisdictional precondition to finalising the reassessment. The onus is on the Department to show that proper service of notice has been effected under section 148 of the Act on the assessee or an agent duly empowered by him to accept notices on his behalf. The mere fact that an assessee or some other person on his behalf not duly authorised participated in the reassessment proceedings after coming to know of it will not constitute a waiver of the requirement of effecting proper service of notice on the assessee under section 148 of the Act. Reassessment proceedings finalised by an Assessing Officer without effecting proper service of notice on the assessee under section 148(1) of the Act are invalid and liable to be quashed. Held accordingly, that no attempt had been made by the Department to serve the assessee at t....
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....ings :- "Held, dismissing the appeal, that the assessee had filed an affidavit stating that it had not received the notice and the Tribunal rightly held that under these circumstances, the burden was upon the Department to prove that notice was served upon the assessee within the prescribed time. The Department had failed to prove its case in this regard. The Tribunal was right in setting aside the order of assessment. No substantial question of law arose from its order." 37. In view of what has been discussed above and following the law laid down by Hon'ble Delhi High Court discussed in the preceding paras, we are of the considered view that when the Revenue has failed to prove the mandatory service of notice upon the assessee issued u/s 148 and u/s 142(1), as the case may be, assessment framed by the AO u/s 254/144 of the Act is not sustainable, hence ordered to be quashed. Consequently, appeals filed by the assessee bearing ITA Nos.5853, 5854 & 5855/Del/2016 for AYs : 2006-07, 2007-08 & 2008-09 respectively are ordered to be allowed. ITA NOS.7343, 7344 & 7345/Del./2018 AYs : 2006-07, 2007-08 & 2008-09 38. On the basis of assessments framed u/s 254/144 of the Ac....