2007 (9) TMI 239

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ial question of law is framed for consideration: - "Whether the Income Tax Appellate Tribunal was correct in law in holding that the assessment framed by the Assessing Officer under Section 143 (3) of the Income Tax Act, 1961 was without jurisdiction as no notice under Section 143 (2) was served on the assessee within the prescribed time?" 4. Filing of paper book is dispensed with. 5. The Tribunal, in the order under appeal dated 23^rd December, 2005, came to the conclusion that the notice dated 9^th October, 1998 issued under Section 143 (2) of the Act was not served upon the assessee. The Tribunal relied upon an affidavit filed for the first time by the assessee before it in which the assessee denied receipt of the notice dated 9....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....mits that the filing of the affidavit amounts to an effective rebuttal of the presumption of service under Section 27 of the General Clauses Act. He further submits that in the appeal filed by the assessee before the Commissioner of Income Tax (Appeals), a ground has been taken to the effect that no notice dated 9^th October, 1998 was served upon the assessee. He also submits that the fact that from 9^th October, 1998 to 7^th March, 2000 no proceedings were at all held by the Assessing Officer reinforces his position that the notice dated 9^th October, 1998 was not served on the assessee. Learned counsel for the assessee placed reliance on the judgments of this Court in Commissioner of Income Tax v. Hotline International (P) Limited [2008] ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....IT (A) the assessee did not file any affidavit to rebut the statutory presumption of service. The affidavit denying service of notice was filed by the assessee only before the Tribunal. 12. In our view the Tribunal erred in placing reliance upon the affidavit filed rather belatedly to come to the conclusion that the assessee had successfully rebutted the presumption. Had such an affidavit been filed before the CIT (A) it is possible that the CIT (A) may have remanded the matter to the Assessing Officer for making an appropriate enquiry. The assessee having let that opportunity go-by, it ought not to have been permitted by the Tribunal to rely on an affidavit filed at a time of the assessee's choosing. 13. We also find that the facts i....