MOUNT SHIVALIK SECFIN PVT LTD vs. COMMISSIONER OF INCOME TAX

IN THE HIGH COURT OF DELHI AT NEW DELHI . 25.10.2010 . Present: Dr. Rakesh Gupta with Ms. Rani Kiyala and Mr. Johnson Bara, Advs. for the appellant. Mr. N.P. Sahini, Adv. for the respondent. . +ITA No.1665/2010 . The only issue which is raised in this appeal is that the appellant was not served with notice under Section 143(2) of the Income Tax Act and therefore, the assessment proceedings are bad in law. In this behalf, we may record that such an issue is not even raised before the Assessing Officer when the assessee was purportedly in the proceedings before him. However, CIT (A) as well as Income Tax Appellate Tribunal has recorded consistent findings of fact that the notice under Section 143(2) of the Act was presumed to have been received by the appellant-assessee. We may quote the following observations of the ITAT, which reads as under: ?16. With regard to ground taken by the assessee for annulling the assessment on the plea of non-service of notice u/s 143(2), we found that during the course of appellate proceedings the CIT(A) has called for the remand report wherein it is found that a notice u/s 143(2) was sent by registered post at the correct address i.e. the same at which a refund has also been sent and was duly encashed. The assessee did not raise any grievance before the A.O. during the assessee proceedings, therefore, the AO did not call for any report from the post office. The CIT (A) observed that by not asking the AO regarding non- service of notice the assessee deprived the AO from making the relevant enquiries from the post office in time, and since the post office rules follow a time limit policy of six months only for providing such information, the delay on the part of the assessee has come in the way of the A.O. We found that after filing the return on 3.10.2002, the AO issued notice u/s 143(2) dated 10.10.2003. As per relevant provisions as applicable for AY 2002-03 under consideration, the AO may issue and serve notice upto 31.10.2003. Nothing was brought on record by the assessee to show that notice issued on 10.10.2003 was served after 31.10.2003, accordingly there is no infirmity in the order of CIT . . (A) for upholding the service of mandatory notice u/s 143(2) of the Act within the statutory time limit. Accordingly we do not find any reason to interfere in their orders holding that there was valid service of notice within the statutory time limit. ? . Therefore, we are of the opinion that no substantial question of law arises for determination. This appeal is accordingly dismissed. . A.K. SIKRI, J. . SURESH KAIT, J. OCTOBER 25, 2010 pmc . . #68