M/S MUNDRA WOOLLEN MILLSP LTD vs. ASST COMMISSIONER OF I T AJMER and ORS

By way of this appeal, the appellant has assailed the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal of the assesse.

This court while admitting the matter framed the following questions of law:- “i) Whether on a proceeding initiated under Section 143(2) of the Income Tax Act, 1961, service of notice on the assessee is necessary

Central Revenue Building, Main Road, Ranchi & Anr. reported in [2013] 357 ITR 619 (Jharkhand) wherein it has been held as under:- “5. Learned counsel for the appellant drew our attention to the order-sheet wherein the Assessing Officer has taken note of the objection of the assessee in the order sheet dated 10.9.2008. It is submitted that finding substance in the objection of the assessee, the Assessing Officer issued notice to the Postmaster of the area concerned i.e.; G.P.O., Doranda, from where notice under Section 143(2) alleged to has been sent through Speed-post. Not only this but a letter under Section 133(6) of the Act of 1961 was also served upon Postmaster, G.P.O., Doranda. The Postmaster gave reply to the notice and submitted that the request of the Income Tax

We have considered the submissions of the parties on this issue. It will be relevant to mention here that as per Section 282 of the Act of 1961, notice can be served either by post or in the manner in which the summons are issued by the Courts under the provisions of Code of Civil Procedure. Therefore, if the argument of the learned counsel for the appellant, that Income Tax Act of 1961 is special Act and it contains the provisions for service of notice, according to which only a notice can be served upon assessee; then in that view of the matter, the only recourse is that notice should be issued either by post or it may be served as is served under the provisions of Code of Civil Procedure. In this case, a notice under Section 143(2) of the Act of 1961 was alleged to has been sent by post, which includes sending notice by Ordinary Post, Post under Certificate, Registered Post, Registered A/D or by Speed Post and this fact is not in dispute that notice was sent by "Speed Post" and, therefore, notice was in accordance with law under Section 282(1) of the Act of 1961. 11. The next question arose is whether in the facts of the case, the Tribunal has committed error of law in holding that the service was valid?, which is the question number 1 framed in this appeal.

In a matter of service through post, there are certain ways whereby notices are sent through department of post. In this case, as we have already discussed that in the order sheet, name and address of the assessee was mentioned and address is wrong was not the plea of the assessee. Therefore, Department sent the notice under Section 143(2) of the Act to the Assessee on the assessee's address, and that too through Speed Post which is more reliable mode therefore, it is required to be presumed that notice was delivered to the addressee.”

In our considered opinion, the appellant was not served otherwise there is no need of another notice to be issued in 2010. 6. In that view of the matter, without entering into merits of the appeal we are remitting back the matter to the Tribunal. The order of Tribunal is quashed and set aside.

It is made clear that we have not expressed any opinion on merit and the Tribunal will hear the appeal afresh and will decide the issue without being influence by this order of remitting back to the Tribunal.

Both the sides will appear before the Tribunal on 11th December, 2017. 9. The appeal stands allowed. (VIJAY KUMAR VYAS),J. (K.S. JHAVERI),J. A.Sharma/11