Bombay High Court
The Pr. Commissioner Of Income Tax-7 vs M/S. Hindustan Candle Manufacturing ... on 3 December, 2018
Bench: Akil Kureshi, M.S.Sanklecha
S.R.JOSHI itxa-542-2016.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INCOME TAX APPEAL NO. 542 OF 2016
The Pr. Commissioner of Income Tax-7 .. Appellant.
v/s.
M/s. Hindustan Candle Manufacturing
Co. Pvt. Ltd., .. Respondent.
Mr. A. R. Malhotra with Mr. N. A. Kazi, for the Appellant.
Mr. Satish Modey with Ms. Aasifa Khan, for the Respondent.
CORAM: AKIL KURESHI &
M.S.SANKLECHA, JJ.
DATE : 3rd DECEMBER, 2018.
P.C:-
This Appeal filed by the Revenue, challenging the Judgment of the Income Tax Appellate Tribunal (for short "Tribunal"). Following questions are presented for our consideration:-
" Whether, on the facts and in the circumstances of the case and in law, the Tribunal is right in holding that the assessment u/s. 143(3) of the Act is invalid by holding that the Revenue has failed to prove the satisfaction regarding service of notice u/s. 143(2) of the Act without appreciating the fact that notice had been served in time?"
2 Short controversy relates to the service of notice under Section 143(2) of the Income Tax Act, 1961 (for short "the Act") by the Assessing Officer on the Assessee. It is un-disputed that, by virtue of judgment of the Supreme Court, in case of ACIT v/s. Hotel Blue Moon 321 ITR 362, notice was mandatory. It is undisputed that Revenue had ::: Uploaded on - 06/12/2018 ::: Downloaded on - 28/12/2018 23:02:50 ::: S.R.JOSHI itxa-542-2016.odt issued such notice. The dispute revolves around the question - whether the notice was served on the Assessee or not. The Assessee, had at the first available opportunity, raises the objection to service of notice before the Assessing Officer. The Assessing Officer did not decide this question but proceeded to frame the Assessment. Before the Tribunal, this issue was also contested by the Assessee. The Tribunal held that there was no proof of service of notice on the Assessee, by making following observations:-
" We find that the first entry in the assessment proceedings is dated 08.08.2008 and prior to that date there is nothing on the assessment records to show that any notice u/s. 143(2) was issued by the Assessing Officer except the copy of notice dated 20.10.2007 purported to be served on the assessee on 23.10.2007. From the alleged notice, we find that this notice was not sent through the process of registered post or postal authorities but the revenue has claimed that it was served personally on the assessee. This notice does not bear any name of the person or identification of the person to whom it was served. Only one signature appears on it with date 23.10.2007 and time 1.20 P.M. therefore, from the copy of the alleged notice, it can not be ascertained as to whom the notice was served. Even, otherwise, the assessee is a company and the notice served on the assessee must bear the signature of the authorized person of the assessee along with seal and at least the name and designation of the person who received the notice. In the case in hand, there is nothing on record to show that to whom the notice was served and whether the recipient of the notice was authorized person of the assessee or at least belonging to the assessee. The affidavits filed by the revenue of one Mr. Anil K. Gupta is neither the then Assessing Officer who issued the notice nor having personal knowledge about the fact of service of notice. In the affidavit, the officer has made the claims on the basis of the assessment record. Even from the affidavits, it can be seen that the deponent has not claimed to have served the notice u/s. 143(2) and given the details of issuance of notice. As regards the alleged notice u/s. 115WE(2), there is nothing on record to show that any such ::: Uploaded on - 06/12/2018 ::: Downloaded on - 28/12/2018 23:02:50 ::: S.R.JOSHI itxa-542-2016.odt notice was issued to the assessee. Further, when the return filed by the assessee was accepted by the Assessing Officer then there was no question of any proceedings or raising the objection by the assessee against the service of notice u/s. 115WE(2). Therefore, the affidavit filed by the revenue as well as assessment u/s. 115WE(2) would not help the case of the revenue. As regards t he plea that the case of the assessee is covered u/s. 292 BB, it is pertinent to note that this provision has been inserted in the statute by the Finance Act, 2008 w.e.f. 01.04.2008 and, therefore, the provisions of section 292 BB are not applicable for the A.Y. under consideration."
3 It can be thus be seen that, the Tribunal has recorded that the notice was not dispatched through the postal authorities. It was claimed to have been served through personal service. The notice did not bear the name of the person or identification of the person to whom it was served. The notice merely contained the signature with a date from which, according to the Tribunal, it cannot be ascertained to whom the notice was served. The Tribunal records that in the Assessment proceedings, there was no recording of proceeding before 08.08.2008. This, was long after the alleged service of notice by the deponent on the Assessee. The Tribunal also noted that the Assessee was a company. There was noting on record to suggest that the notice, even if, served was on any person authorized by the Company to receive the same. The Assessing Officer had filed affidavit, claiming that the notice was duly served. However, Tribunal recorded that the said affidavit was not based on any personal knowledge of the deponent. It can thus be seen that on the basis of material on record, the Tribunal came to the conclusion that the Department failed to establish that the notice was duly served. Consequently, the stand of the Assessee that no such notice was served upon us, was accepted. No question of law, therefore arises.
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4 Accordingly, Appeal is dismissed.
(M.S.SANKLECHA,J.) (AKIL KURESHI,J.)
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