CIT, FARIDABAD vs. CEBON INDIA LTD., DELHI

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ITA/85/2009HC Punjab & HaryanaPHHC01084875200907 July 2009Author: MR. JUSTICE ADARSH KUMAR GOEL,MRS JUSTICE DAYA CHAUDHARY3 pages
AI SummaryDismissed

What did the High Court hold?

The High Court held that there was a concurrent finding by the CIT(A) and the Tribunal on the question of the date of service of notice, which was not served within the stipulated time. The Court found that merely providing a dispatch number did not render the finding of non-service perverse. The Court reasoned that in the absence of proper service of notice, the Assessing Officer lacked jurisdiction to make the assessment. Furthermore, the Court held that the absence of notice could not be considered curable under Section 292BB of the Act. Consequently, the Court found no substantial question of law arising from the ITAT's order.

What were the facts?

The revenue, Commissioner of Income Tax, Faridabad, filed an appeal under Section 260A of the Income Tax Act, 1961, against an order of the Income Tax Appellate Tribunal (ITAT), Delhi Bench. The ITAT had affirmed the order of the Commissioner of Income Tax (Appeals) [CIT(A)]. The assessment year in question is 1996-97. The assessee, M/s Cebon India Limited, filed its return on 30.11.1996, which was processed under Section 143(1)(a). Subsequently, an assessment was framed under Section 144. The CIT(A), in the second round of proceedings after a remand by the ITAT, allowed the assessee's appeal, holding that a notice under Section 143(2) was not served on the assessee before 30.11.1997, making the assessment void. The ITAT upheld this finding.

What were the issues?

1. Whether on the facts and in the circumstances of the case, the Ld. ITAT is right in law in holding that there was no valid service of notice u/s 143(2) before the due date even though the Assessing Officer had issued the notice u/s 143(2) on 11/13.11.1997 vide dispatch No. 2640 and subsequently, the assessee participated in the proceedings? 2. Without prejudice to the above, whether the Tribunal is right in not treating the defect, if any, in service of notice u/s 143(2) as an irregularity curable u/s 292BB of the Income Tax Act, 1961? Assessee's contentions: Not recorded. Revenue's contentions: The revenue argued that a notice was duly dispatched to the assessee on 13.11.1997, and any irregularity or defect in issuing the notice was curable under Section 292BB of the Act.

Which sections of the Income-tax Act were involved?

Section 260A,Section 143(2),Section 143(1)(a),Section 144,Section 292BB

AI-generated summary — verify with the full judgment below

(1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: 7.7.2009 Commissioner of Income Tax, Faridabad ..........Appellant Versus M/s Cebon India Limited, C/o Rakesh ..........Respondent Raj & Associates, Chartered Accountants CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. Rajesh Katoch, Advocate for the appellant. **** ADARSH KUMAR GOEL, J. (Oral)

1.

The revenue has preferred this appeal under Section 260A of the Income Tax Act, 1961 (for short, “the Act”) against the order dated 27.6.2008 passed by the Income Tax Appellate Tribunal, Delhi Bench “I”, New Delhi in ITA No. 4531/DEL/2005 for the assessment year 1996-97, proposing to raise following substantial questions of law:- 1. “Whether on the facts and in the circumstances of the case, the Ld. ITAT is right in law in holding that there was no valid service of notice u/s 143(2) before the due date even though the Assessing Officer had issued the notice u/s 143(2) on 11/13.11.1997 vide dispatch No. 2640 and subsequently, the assessee participated in the proceedings?” 2. “Without prejudice to above, whether the Tribunal is right in not treating the defect if any in service of notice u/s 143 (2) as an irregularity curable u/s 292 BB of the (2) Income Tax Act, 1961?”

2.

The assessee filed return for the assessment year in question on 30.11.1996, which was processed under Section 143 (1) (a) on 30.5.1997. Thereafter. assessment was framed under Section 144 of the Act, which was affirmed in appeal. The Tribunal, however, remanded the matter to CIT (A). The CIT (A), in the second round, allowed the appeal on the ground that there was no evidence to show that notice under Section 143 (2) of the Act had been served on the assessee before 30.11.1997 i.e. within one year of the filing of the return. It was accordingly held by the CIT (A) that the assessment was void.

3.

The finding of the CIT (A) has been affirmed by the Tribunal.

4.

Learned counsel for the revenue submits that a notice has been duly dispatched to the assessee on 13.11.1997 and the irregularity or defect in issuing notice was curable under Section 292BB of the Act.

5.

We find that concurrent finding has been recorded by the CIT (A) as well as the Tribunal on the question of date of service of notice. Notice was not served within the stipulated time. Mere giving of dispatch number will not render the said finding to be perverse. In absence of notice being served, the Assessing Officer had no jurisdiction to make assessment. Absence of notice cannot be held to be curable under Section 292 BB of the Act.

6.

In view of above, no substantial question of law arises.

7.

The appeal is dismissed. (ADARSH KUMAR GOEL) JUDGE July 07, 2009

(DAYA CHAUDHARY) pooja JUDGE Note:-Whether this case is to be referred to the Reporter .......Yes/No (3)

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