THE COMMISSIONER OF INCOME TAX V vs. RAJOURI BUILDERS & PROMOTERS P.LTD.

ITA - 1205 / 2008HC Delhi29 September 20081 pages

For Petitioner: MR.SANJEEV SABHARWAL

AI SummaryDismissed

What did the High Court hold?

The High Court held that no question of law, let alone a substantial question of law, arose for its consideration. The Tribunal's findings, that the notice under Section 143(2) was despatched on 30.10.2003 and that service by 31.10.2003 could not be presumed without proof from the department, were considered as findings of fact. The Court found no perversity in these factual conclusions reached by the Tribunal. Therefore, the appeal filed by the revenue was dismissed. The operative direction was the dismissal of the appeal.

What were the facts?

This appeal concerns assessment year 2002-03 and arises from the Income Tax Appellate Tribunal's (ITAT) order dated 04.04.2008. The assessee filed its return on 31.10.2002. The dispute centers on the service of a notice under Section 143(2) of the Income-tax Act, 1961. The Assessing Officer contended the notice was issued on 28.10.2003 and despatched on 29.10.2003. However, the ITAT found, as a question of fact, that the notice was despatched on 30.10.2003. The ITAT also concluded that a speed post letter despatched on 30.10.2003 could not be presumed to have been served on the assessee by 31.10.2003 without departmental proof.

What were the issues?

1. Whether the notice under Section 143(2) of the Income-tax Act, 1961, was served on the assessee within one year from the end of the month in which the return was filed? Assessee's contention: The assessee's primary contention, as reflected in the High Court's consideration, is that the notice under Section 143(2) was not served within the statutory period. This is based on the ITAT's finding that the notice was despatched on 30.10.2003, making service by 31.10.2003 improbable without proof. Revenue's contention: The revenue, represented by the Assessing Officer, contended that the notice was issued on 28.10.2003 and despatched by speed post on 29.10.2003, implying timely service. The revenue's argument implicitly relies on the presumption of service within the stipulated period if despatched before the deadline.

Which sections of the Income-tax Act were involved?

Section 143(2)

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF DELHI AT NEW DELHI . 29.09.2008 . Present: Mr Sanjeev Sabharwal for the Appellant. . + ITA 1205/2008 . This appeal arises out of the tribunal?s order dated 04.04.2008 passed in ITA No.4374/Del/05 pertaining to the assessment year 2002-03. The only issue sought to be raised in this appeal relates to the question as to whether the notice under Section 143 (2) of the Income-tax Act, 1961 was served on the assessee within one year from the end of the month on which the return was filed. The assessee filed the return on 31.10.2002. Consequently, the notice under Section 143 (2) ought to have been served on the assessee within one year thereof, i.e., by 31.10.2003. Although it is contended by the Assessing Officer in his order that the notice under Section 143 (2) was issued on 28.10.2003 and despatched by speed post on 29.10.2003, the tribunal has found as a question of fact that the notice was despatched on 30.10.2003 from speed post booking, Bikrikar Bhawan, New Delhi-110002. The tribunal also concluded as a fact that the letter sent by speed post on 30.10.2002 cannot be expected to have been served upon the assessee on 31.10.2002 unless it is proved and established to be so by the department. . . . 2. We do not see any perversity in the findings returned by the tribunal. No question of law, what to speak of a substantial question of law, arises for our consideration. The appeal is dismissed. . . BADAR DURREZ AHMED, J . . . RAJIV SHAKDHER, J September 29, 2008 dutt . . 44

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