TaxTMI 
TaxTMI 
2022 (8) TMI 22
X X X X Extracts X X X X
X X X X Extracts X X X X
....d and appeals are being disposed off. Ld CIT DR was asked to proceed with the case. 4. It was submitted by ld CIT DR that the assessee has filed an additional ground on 3.11.2020, wherein the assessee has challenged the service of the notice u/s.263 of the Act. It was the submission of ld CIT DR that the original assessment in the case of the assessee was completed on 12.12.2011 u/s.143(3) of the Act. It was the submission that there was a search in the group of M/s. Shivom Minerals Ltd and Group at Rourkela on 24.9.2014. It was the submission that certain incriminating materials have been found in the course of search and proceedings u/s.153C of the Act had been initiated on the assessee. The assessments u/s.143(3) r.w s 153C came to be completed on 30.11.2016 for the assessment years 2009-10, dated 16.12.2016 for the assessment year 2010-2011, dated 30.11.2016 for the assessment year 2011-12, dated 30.11.2016 for the assessment year 2012-13, dated 31.12.2016 for the assessment year 2014-15 & 2015-16, respectively. 5. It was the submission that subsequently, it was noticed that the assessment orders passed u/s.143(3) r.w.s 153C of the Act were erroneous and prejudicial to th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d "post' or 'Registered Post'. When the notice sent by speed post does not return as undelivered, the finding is that it is deemed to have been delivered on the assessee. Further reliance was placed on the decision of Hon'ble Delhi High Court in the case of CIT vs Madhsy Films Pvt Ltd., (2008) 175 Taxman 347 (Delhi) to support the proposition that once the notice has been issued to the assessee u/s.143(2) of the Act and has been dispatched by speed post at its address as per the return of income and same has not been returned back, it could be presumed that it had reached assessee, especially when no affidavit had been filed by the assessee to the effect that notice was not received by it. Reliance was placed on the decision of Hon'ble Allahabad High Court in the case of CIT vs Privilege Investment Pvt Ltd., (2017) 88 taxmann.com 559 (All) to support the proposition that notice issued u/s.148 sent by post to the addressee at his proper address, would be deemed to have been delivered to him in ordinary course, if not returned undelivered and such service is sufficient. Further reliance was placed on the decision of Hon'ble Supreme Court in the case of Sudev Industries Ltd vs CIT (20....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ld not be terminated. Ld CIT DR also relied on the decision of Hon'ble Bombay High Court in the case of K.C. Tiwari & Sons vs Commissioner Of IncomeTax, 46 ITR 236 (Bom) to submit that the service of notice is not exhaustive and it is permissible to have the notice effected in a way other than two modes provided in the Act and just because there is some procedural irregularity in serving the notice, if the assessee has admitted that he had received the notice and asked for adjournment, the assessee could not subsequently be allowed to plead that there was no valid and legal service. It was the submission that notice had been served on the assessee and the employee of the assessee had appeared and sought adjournment, the onus lies on the assesee to claim that Shri Uttam Kumar was not an employee or that the notice was invalidly served. It was the further submission that the fact that the assessee is in Jail and as to which jail was not brought to the notice of the Pr. CIT, (Central), Vizag. It was the submission that it was not possible for the Pr. CIT to go searching for the assessee in various jails and the department cannot be expected to do the impossible. It was the further sub....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y be served on another provided such individual authorises another person to act on his behalf. Now, the facts in the present case clearly show that notice u/s.263 of the Act was sent on the address of the assessee and the correct address. The fact remains that at that point of time, the assessee was under judicial custody but one Sri Uttam Kumar, claiming to be an employee of the assessee has responded to the notice. The Pr. CIT himself categorically held that the said Sri Uttam Kumar does not hold the power of attorney to represent the assessee. Ld Pr. CIT has been communicated by a letter that the assessee is in judicial custody. When an individual is in judicial custody, any notice on such individual can be served on him only through the Superintendent of the Jail, wherein, the individual is lodged. One should keep in mind that once the individual is taken under judicial custody, many of his constitutional rights stands curtailed. Nothing stopped the Pr. CIT from communicating the notice to the individual in jail. Once he was intimated that the assessee is in jail, the Pr. CIT was aware that the assessee is in judicial custody as on 20.3.2019. He had adequate time for serving t....