1982 (8) TMI 23

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.... is answered in the negative, whether the assessment made under section 147 was valid ? " The facts in so far as relevant and briefly stated are that the reference relates to the year 1967-68. The assessee who is a doctor did not file the return of income under s. 139(1) and the ITO issued a notice under s. 148 on 24th May, 1969. This notice was served on a person on 13th June, 1969. Initials on the office-copy of the notice in token receipt of the notice are not legible. Thereafter, a notice under s. 142(1) was issued. The assessee filed his return on 27th December, 1969. After issuing notice under s. 143(2) and recording the statement of the assessee on oath the ITO computed the income of the assessee at Rs. 44,346 and assessed him to ....

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.... though the assessee may not have been personally served with the notice and the person who received it might not have also been authorised to receive it on his behalf, yet as the notice in fact reached the assessee and he complied with the same, the service must be held to be valid. It is not in dispute that the service of a notice u/s. 148 is an essential requirement for making the assessment u/s. 147. Section 148 is drafted in mandatory terms leaving no doubt on this question and even if there be any doubt, that is dispelled by the decision of the Supreme Court in CIT v. Thayaballi Mulla Jeevaji Kapasi [1967] 66 ITR 147, which is a ruling on the corresponding provisions of the 1922 Act. Service of notice has to be effected as provided....

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.... it had reached the assessee. We agree with the view taken by the Tribunal. The assessee did not dispute before the Tribunal that he in fact received the notice. The assessee participated throughout in the assessment proceedings before the ITO without raising any objection. Even if there was any procedural irregularity in the service of notice in that it was not served by the serving officer on the assessee personally or an agent empowered to receive service that irregularity loses all significance once it is held that the notice was in fact received by the assessee and was acted upon by him before the ITO without raising any objection. Such a procedural irregularity in service of the notice under s. 148 cannot be held to invalidate the ....