ANIL KISANLAL MARDA,PUNE vs. INCOME-TAX OFFICER,, PUNE

आदेश / ORDER PER R.S.SYAL, VP :

In this appeal, the assail is to the legal tenability of the order passed by the CIT(A)-II, Pune on 25-03-2013 in relation to the Assessment Year 2009-10.

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on 08-05-2014 and 03-04-2019 respectively:

“1. Since the impugned appellate order is antedated, the same is bad in law and null and void and therefore the same may please be annulled.”

“2. Since the learned Assessing Officer has failed to issue and serve upon the appellant assessee the notice u/s.143(2) of the I.T. Act, 1961 within the prescribed time limit, the impugned assessment order framed by the learned Assessing Officer is bad in law, without jurisdiction and hence null and void and therefore the same may please be annulled.”

grounds were inadvertently omitted to be taken in the

memorandum of appeal but are significant for the disposal of the

appeal by the Tribunal. It was, therefore, prayed that the same

be admitted. This was opposed by the ld. DR.

grounds taken by the assessee, it is discernible that the same are

legal grounds involving adjudication on questions of law. The

Hon’ble Supreme Court in National Thermal Power Company

Ltd. Vs. CIT (1998) 229 ITR 383 (SC) has observed that “the

purpose of the assessment proceedings before the taxing

authorities is to assess correctly the tax liability of an assessee in

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accordance with law. If, for example, as a result of a judicial

decision given while the appeal is pending before the Tribunal, it

is found that a non-taxable item is taxed or a permissible

deduction is denied, we do not see any reason why the assessee

should be prevented from raising that question before the

tribunal for the first time, so long as the relevant facts are on

record in respect of that item”. Answering the question posed

before it in affirmative, their Lordships held that on the facts

found by the authorities below a question of law arises (though

not raised before the authorities) which bears on the tax liability

of the assessee and the Tribunal has jurisdiction to examine the

same. We find that both the additional grounds raised before

the Tribunal involve pure questions of law and no fresh

investigation of facts is necessary for their determination. We

are, therefore, admitting such additional grounds to be espoused

for disposal on merits.

challenged that the impugned order passed by the ld. CIT(A) is

antedated and hence be declared null and void. The ld. AR

claimed that albeit the ld. CIT(A) dated the order as 25-03-2013,

but it was actually passed somewhere in the month of July,

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2013. In support of this contention, the ld. AR relied on the

affidavit of the assessee as per which the assessee personally

appeared before the ld. CIT(A) in the months of June and July,

2013 and requested him for grant of an opportunity of hearing in

his appeals pending before him for the Assessment years 2008-

09 and 2009-10. It has further been claimed that the ld. CIT(A)-

II, Pune told him that he was proceeding on foreign tour to USA

and the orders would be finalized after he returns in August,

2013. It has still further been stated that the ld. CIT(A) directed

his staff to accept any application, if submitted by him. The

assessee has averred in the affidavit that he submitted an

application on 12-07-2013 for the instant year and a similar

application was filed by him on 19-07-2013 for the A.Y. 2008-

conviction that the impugned appellate order passed by the ld.

CIT(A) was antedated and hence, null and void. Upon filing of

this affidavit by the assessee, the Tribunal directed the ld. DR to

obtain comments of the ld. CIT(A) who passed the impugned

order. Such comments, in the form of a letter dated 08-09-2014

of Sh. A.S. Singh, the ld. CIT(A) who passed the impugned

order, have since been filed before the Tribunal.

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relevant material on record. The case of the ld. AR is that the ld.

CIT(A) antedated the impugned order and its actual passing after

3 to 4 months from the conclusion of hearing has rendered it

null and void. To buttress this contention, he relied on

Instruction No.20/2003, dated 23-12-2003 by which the CBDT

desired that the CIT(As) should issue orders within 15 days of

the last hearing. This view was reiterated vide F.No.279/Misc.

53/2003-ITJ, dated 19-06-2015, whereby the ld. CIT(As) were

beseeched by the CBDT to issue orders within 15 days from the

last hearing.

have been advised to pass and issue orders within 15 days from

the date of last hearing. Consequences of passing orders beyond

the stipulated period of 15 days have not been spelt out in these

instructions, except for mentioning that: `Any lapse on this

account shall be viewed adversely’. There may be certain

administrative action upon the CIT(As) who pass orders

belatedly, but how does it affect the validity of the order in the

eyes of law is not borne out of such Instructions. Further,

nothing has been brought to our notice indicating initiation of

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any disciplinary action against the ld. CIT(A) for the alleged

delay in passing the impugned order.

assessee about the late passing of the impugned order by the ld.

CIT(A) in July, 2013 as against the conclusion of hearing in

March, 2013, is unfounded. Shri A.S. Singh, CIT(A)-II, Pune

vide the aforesaid letter dated 08-09-2014 has stated that the

impugned order was passed on the date mentioned in the order

itself, namely, 25-03-2013. Further, this order was reported by

him as one of the best appellate orders passed by him in March,

2013 in the monthly D.O. letter sent to the Chief Commissioner

of Income Tax, Pune (CCIT) in the second week of April, 2013.

A copy of such D.O. letter addressed to the CCIT, Pune has been

enclosed as Exhibit-A. A perusal of Exhibit-A, being, monthly

D.O. letter dated 10-04-2013 from Shri A.S. Singh, CIT(A)-II,

Pune, transpires that he reported to have disposed of 442

appeals during the F.Y. 2012-13, which included 270 high

demand appeals and 172 low demand appeals. On second page

onwards of the letter, the ld. CIT(A) has referred to some of the

good orders passed by him during the month of March, 2013.

Page No.3 of the letter contains a reference to the disposal of

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appeal of the assessee for the A.Y. 2009-10 with tax effect of

Rs.1.11 crore and odd. He has also discussed the crux of the

order passed by him in the same para. This monthly D.O. letter

has been addressed to Shri R.K. Roye, CCIT, Pune. The ld. AR

or the assessee, who was also present during the course of

hearing before the Tribunal, did not controvert the authenticity

or genuineness of this letter dated 10-04-2013 addressed by Shri

A. S. Singh to the CCIT, Pune. In the face of this letter

addressed by Sh. Singh to the Chief CIT Pune, inter alia,

referring to the passing of the impugned order, there remains no

doubt whatsoever that the order was passed in the month of

March, 2013 itself.

08-09-2014 has stated that he was nominated for Advanced mid-

career training programme of IRS Officers at IIM, Bangalore

from 03-06-2013 to 21-06-2013 followed by Advance mid-

career training programme of IRS Officers in the USA from

13-07-2013 to 02-08-2013, for which a lot of preparation and

paper work was required to be done before his departure to the

USA. He has stated that due to these constraints there was some

delay in the actual dispatch of a batch of appellate orders passed

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by him in the month of March, 2013, including the impugned

order, which did not mean that all such appellate orders passed

were antedated. We have seen from the Dispatch register, which

has been produced for our verification, that several orders passed

by the ld. CIT(A) in the month of March, 2013, were actually

dispatched in the month of July, 2013.

appeared before Sh. A.S. Singh, the ld. CIT(A) in the months of

June/July, 2013 and also filed two letters in his office. Our

attention has been drawn towards one of such letters dated

13-07-2013, which bears the receipt stamp with date

12-07-2013. In the affidavit also, the assessee has stated that he

filed a letter on 12-07-2013. Though there is difference in the

dates, we agree with the ld. AR that mentioning of date as

13-07-2013 on the letter may be a typographical error and the

same might have actually been delivered in the office of ld.

CIT(A) on 12-07-2013. The assessee stated before this Tribunal

that he personally met Shri A.S. Singh, CIT(A)-II, Pune on the

given date and it was only on his advice that his office accepted

the aforesaid letter on 12-07-2013. The assessee also stated that

he met Sh. A.S. Singh, the ld. CIT(A) on 19-07-2013 and filed a

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similar letter for the A.Y. 2008-09 which also met with the same

fate.

the CIT(A). The letter filed by the assessee in the office of

CIT(A) on 12-07-2013 has been initialled by one H.S. with

remarks Sr. TA. The ld. DR explained that H.S. refers to Shri

Hareshwal Sharma, CIT(A)-I, Pune, who was holding additional

charge at the material time in the absence of Shri A.S. Singh,

regular CIT(A)-II, Pune who went to the USA from 13-07-2013

and returned on 02-08-2013. Similar is the position regarding the

second letter filed by the assessee dated 19-07-2013 which also

bears initials of H.S. This shows that on 12-07-2013 and

19-07-2013, Shri A.S. Singh, ld. CIT(A)-II, Pune, was not

physically present in his office and the contention of the assessee

that he personally met Shri A. S. Singh on these dates is found to

be incorrect. The affidavit has been very carefully worded by

mentioning that the assessee personally appeared before Sh. A.S.

Singh, the ld. CIT(A)-II, Pune in the months of June and July,

2013. No specific dates have been given. Though in the earlier

paras, the assessee has been very meticulous with the exact

dates, like in para 3, he has specifically mentioned “that till

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26-07-2013, I was not aware of the aforesaid order was passed

by the ld. CIT(A)-II, Pune”. It is not comprehensible as to why

the assessee did not mention the specific dates of June/July 2013

on which he allegedly met Sh. A.S. Singh.

observed that the appeal came up for hearing before him on

different dates and as per record, the assessee was represented

by his counsel alone. Last hearing took place on 20-03-2013

which records the presence of the assessee’s counsel only, who

filed the written submissions dated 04-03-2013 and explained

the case. The hearing got concluded on 20-03-2013 and then

there is an entry regarding the disposal of appeal on 25-03-2013.

When there is no record of the attendance of the assessee before

the ld. CIT(A) during the course of hearing spreading on several

occasions, we are unable to understand as to what compelled the

assessee to start appearing thereafter in the office of the ld.

CIT(A) all alone and that too without his counsel. The above

narration of factual panorama manifests that there is something

amiss in the affidavit of the assessee.

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concluded the hearing on 20-03-2013 and passed the order on

25-03-2013, but the same was dispatched late, along with several

other orders passed by him in the month of March, 2013.

for quashing the impugned order, being, illegal on the raison

d`etre advanced, a contention with which we do not actually

agree, a fortiori which would follow is that the assessment order

would revive in the absence of there being any valid first

appellate order. It would again require direction from our end to

the ld. CIT(A) to pass an order as the appellant urging the

quashing of the impugned order in this case is the assessee and

the impugned order has been passed against him. Further, on a

specific query as to how the assessee was prejudiced by the

supposed antedating of the impugned order in terms of either

some limitation setting in or the right to file appeal against it

being jeopardized, the ld. AR candidly admitted that no such

legal right of the assessee was impaired.

allegation levelled by the assessee that the impugned order was

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antedated by the ld. CIT(A), is not correct and is hereby rejected.

The first additional ground is, ergo, dismissed.

challenged the non-service of notice u/s.143(2) of the Income-

tax Act, 1961 (hereinafter also called `the Act’) within the

prescribed time limit. The ld. AR submitted that no notice u/s

143(2), as required under the proviso to section 143(2) of the

Act, was ever served within the stipulated period of six months

from the end of the relevant assessment year and hence the

assessment order be declared a nullity. This was countered by

the ld. DR, who stated that notice u/s 143(2) of the Act was

issued by the Assessing Officer (AO) on 8.9.2010 at the address

given in PAN, which fact is established from the return of the

notice by the postal authorities. She admitted that even though

the notice was sent at an address different from that given in the

return of income, but supported the action of the AO in sending

notice at the address given by the assessee in the PAN on the

strength of Rule 127 of the Income-tax Rules, 1962 (hereinafter

also called `the Rules’) inserted w.e.f. 2.12.2015. She contended

that the rule has a retrospective application. She commended us

to the judgment of the Hon’ble Punjab & Haryana High Court in

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V.R.A. Cotton Mills P. Ltd. VS. UOI & Ors. (2013) 359 ITR 495

(P&H) in which it has been held that the date of ‘issue’ of notice

be considered as compliance of the requirement of proviso to

section 143(2) of the Act, which talks of `service’ of notice

within the stipulated period. Towing the aforesaid reasoning,

she put forth that once the factum of `issue’ of notice u/s 143(2)

was established beyond any shadow of doubt, it should be

considered as full compliance of the mandate of the proviso,

which mentions `service’ of notice on the assessee.

this regard, it is observed from the assessment order that the

assessee filed his return on 31-10-2009 showing total income at

Rs.87,06,746/-. It has been recorded in the assessment order that

“notice u/s. 143(2) dated 08/09/2010 was issued and served on

the assessee. Subsequently, notice u/s.143(2) dated 11-11-2011

was again issued and served on the assessee”. Proviso to section

143(2) of the Act at the material time provided that “no notice

under the said section shall be served on the assessee after the

expiry of six months from the end of the relevant assessment

year”. The assessment year under consideration is 2009-10.

Period of six months from the end of the relevant assessment

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year expires on 30-09-2010. It means that a valid notice u/s.

143(2) could have been issued on or before 30-09-2010 enabling

the AO to proceed with the assessment u/s. 143(3) of the Act.

The AO has referred to two notices u/s. 143(2) dated 08-09-2010

and 11-11-2011. It is obvious that the second notice u/s. 143(2)

dated 11-11-2011 is of no consequence as having been issued

after a period of six months from the end of the relevant

assessment year. Now we need to find out as to whether notice

u/s. 143(2) dated 08-09-2010 was actually issued and served on

the assessee on or before 30-09-2010.

issue and the service of notice u/s. 143(2) dated 08-09-2010 on

the assessee, the ld. AR contended that such notice was never

served. The ld. DR was requested to place on record the

evidence of service of notice. She invited our attention towards

an envelope containing notice u/s.143(2) dated 08-09-2010

which was issued but returned by the postal authorities with

remarks recorded on 27-09-2010 that the addressee is not living

at the given address and the further address is not known. On a

perusal of such envelope, it is observed that the notice was sent

to the assessee at the address 39/11, Budhwar Peth, Solapur,

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Maharashtra 413002. As against this, the assessee filed his

return with Pune address of F-304, Vrundawan Apartments,

Model Colony, Shivajinagar, Pune – 411 016. The AO has also

recorded the Pune address of the assessee in the assessment

order passed on 30-12-2011. On a pertinent query, the ld. DR

admitted that the address given in the return is the same which

has been mentioned in the assessment order. On a further

question as to how the notice was sent at the Solapur address of

the assessee when the return of income contained Pune address,

the ld. DR submitted that the Solapur address has been given by

the assessee in his PAN details and the system generating notice

u/s. 143(2) took up such address from the PAN database. The ld.

DR took us through Rule 127 which provides that notice etc.

may be delivered on any of the addresses which, inter alia,

include the address available in the PAN database of the

addressee under sub-clause (i) of Rule 127(2)(a). She submitted

that the notice sent by the Department on the address given by

the assessee in PAN database was accordingly in order. She also

invoked Section 27 of the General Clauses Act, 1897 to buttress

her submission of valid service of notice, once a notice is sent

through registered post.

16 ITA No.1763/PUN/2013 Anil Kisanlal Marda

the ld. DR, we need to ascertain –

i. Whether the notice u/s 143(2) was actually issued ? ii. Whether `issue’ of notice is equal to `service’ of notice ?

iii. Whether the notice can be considered as served by post? iv. Whether the notice u/s 143(2) can be deemed to have been issued/served ?

i. Whether the notice u/s 143(2) was actually issued ?

u/s 143(2) dated 08.09.2010 was issued and served on the

assessee. On perusal of the assessment records produced by the

ld. DR, it is seen as an admitted position that such notice was

though issued at Solapur address as against the Pune address

given in the return of income, but the same was returned by the

postal authorities and thereafter no other notice was issued

within the stipulated period. Thus it is palpable that the notice

issued and returned by the postal authorities coupled with no

further notice issued by the Department has in substance the net

effect of non-issuance of notice.

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ii. Whether `issue’ of notice is equal to `service’ of notice ?

21.1. The next leg of the argument of the ld. DR was that once

it was established that the notice u/s 143(2) was admittedly

`issued’ before the close of the stipulated period of six months

from the end of the relevant assessment year, which is further

evidenced from the fact that the same was returned by postal

authorities, then such `issue’ of notice should be considered as

`service’ of notice. For this proposition, she relied on V.R.A.

Cotton Mills (supra).

21.2. We have gone through the judgment in the case of

V.R.A. Cotton Mills (supra) in which it has been clearly laid

down that the date of notice as required to be “served” u/s.143(2)

is to be considered as the “date of issue of notice” by the AO,

which supports the view point of the ld. DR. In reaching this

conclusion, the Hon’ble High Court relied on the judgment of

the Hon’ble Supreme Court in Banarasi Devi Vs. ITO (1964) 53

ITR 100 (SC) and dissented with its own judgment in CIT Vs.

Avi- oil India Pvt. Ltd. (2010) 323 ITR 242 (P&H) in which it

was held that notice u/s.143(2) should not only be issued but also

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served within the stipulated period and in the absence of such a

valid service, the assessment is vitiated.

21.3. Similarly, the Hon’ble Gujarat High Court in Shanabhai

P. Patel vs. R. K. Upadhyaya, ITO (1974) 96 ITR 141 (Guj) dealt

with a situation in which reassessment notice was issued within

time-limit but served beyond the prescribed period of four years.

The Hon’ble High Court held that sec. 149 enjoins that a notice

should be issued within prescribed period. It held that the words

"service of notice" or "issuance of notice" have no fixed

connotation but are interchangeable and same meaning should be

given to both the words used in ss. 148 and 149. In reaching this

conclusion, their Lordships also relied on Banarsi Debi vs. ITO

(1964) 53 ITR 100 (SC). The Revenue carried the matter before

the Hon’ble Summit Court. In R. K. Upadhyaya, ITO vs.

Shanabhai P. Patel (1987) 166 ITR 163 (SC), their Lordships

highlighted the difference in the language of the 1922 Act under

which the judgment in Banarsi Debi vs. ITO (supra) was

rendered and the 1961 Act. It observed that : ‘A clear distinction

has been made out between the "issue of notice" and "service of

notice" under the 1961 Act’. Reversing the judgment of the

Hon’ble Gujarat High Court, it held that : `The High Court, in

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our opinion lost sight of the distinction and under a wrong basis

felt bound by the judgment in Banarsi Debi vs. ITO (supra). As

the ITO has issued notice within limitation the appeal is allowed

and the order of the High Court is vacated’. From the above

enunciation of law by the highest court of the country, there

remains no doubt whatsoever that `issue of notice’ cannot be

substituted with `service of notice’.

21.4. It is pertinent to take stock of the judgment of

Hon’ble Delhi High Court in CIT Vs. Lunar Diamonds Ltd.

(2006) 281 ITR 1 (Del.) in which the assessment was held to be

rightly quashed when no notice u/s.143(2) was served upon the

assessee. In that case also, the judgment of Hon’ble Supreme

Court in Banarasi Devi Vs. ITO and others (supra) was pressed

into service, which constituted the foundation in the case of

V.R.A. Cotton Mills Pvt. Ltd. (supra) for holding that date of

service of notice is to be considered as the date of issue of

notice. The Hon’ble Delhi High Court in Lunar Diamonds Ltd.

(supra) held that the judgment in the case of Banarasi Devi Vs.

ITO and others (supra) cannot be applied as it was rendered in

the backdrop of section 4 of the Amendment which is not now

relevant.

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21.5. The Hon’ble Gujarat High Court in Pr. CIT Vs. Nexus

Software Ltd. (2017) 248 taxmann 243 (Guj.) also dealt with a

similar situation, in which the Revenue once again relied on the

judgment of the Hon’ble Punjab & Haryana High Court in

V.R.A. Cotton Mills (supra). The Hon’ble High Court observed

that : ‘However, we are not in agreement with the view taken by

the Punjab & Haryana High Court that the expressions “serve”

and “issue” would have the same meaning. The word “served”

used in Section 143(2) of the Act is very significant and very

clear.’

21.6. The ld. DR also relied on the judgment of Hon’ble

Supreme Court in the case of Madan & Co. vs. Wazir Jaivir

Chand 1989 AIR 630 (SC) to bolster her argument that a

registered letter addressed to the person at his residential address

shall be deemed to be served. We do not find any relevance of

the judgment in Madan & Co. (supra) to the facts of the instant

case. That was a case involving interpretation of section 11 of

the Jammu & Kashmir Houses and Shops Rent Control Act,

1966 in which the respondent issued a notice to the petitioner

calling upon him to pay the arrears of rent and also terminate

tenancy. The notice could not be served through postmaster who

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tried to serve the same on the addressee but eventually returned

with the endorsement “left without address, returned to sender”.

The question arose before the Hon’ble Supreme Court as to

whether it should be considered as a proper service. Considering

the section 11(1) of the Jammu & Kashmir Houses and Shops

Rent Control Act, the Hon’ble Supreme Court observed that if

the addressee refuses or declines to accept the notice, then it can

be considered as a proper service. When a postman calls at the

address mentioned and fails to contact the addressee and the

same is returned to the sender because the tenant is away from

the premises for considerable time, then such delay should be

attributed to the tenant’s own conduct and should be considered

as “served”. We do not find any applicability of the ratio laid

down in the case to the facts as are obtaining before us. That

was a decision under a different statute and in a different context

in which notice was required to be given by the owner to the

tenant for eviction of the premises. Non-acceptance of such a

notice was held to be a valid ground for assuming service of

notice as in the otherwise scenario the entire object of the statute

would have frustrated and the tenant could have easily escaped

the clutches of the stringent provisions of eviction by simply

22 ITA No.1763/PUN/2013 Anil Kisanlal Marda

avoiding the service of notice, which is not the case within the

purview of the Income-tax Act.

21.7. In addition to the series of the judgments discussed

above holding that service of notice, which is different from

issue of notice, is a pre-condition for assuming jurisdiction to

frame the assessment, the Hon’ble jurisdictional High Court in

the several decisions including Pr.CIT Vs. Shri Jawahar

Hiranand Bhatia in Income Tax Appeal No.1268/2015 has held

that service of notice u/s. 143(2) within the prescribed time is

sine qua non for completion of assessment u/s. 143(3) of the Act.

In our considered opinion, issuance of notice is different from

service of notice and the two words cannot be used

interchangeably.

iii. Whether the notice can be considered as served by post?

22.1. The ld. DR then contended that sending of notice through

registered post satisfies the requirement of service and there is

no further need to examine, if it was actually served on not. For

this proposition, she relied on certain provision, which we will

be shortly referring to.

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22.2. Section 282 of the Act has caption `Service of notice

generally’. Sub-section (1) provides that : `The service of a

notice or summon or requisition or order or any other

communication under this Act (hereafter in this section referred

to as "communication") may be made by delivering or

transmitting a copy thereof, to the person therein named,—(a)

by post or by such courier services as may be approved by the

Board; or…’. The term service by post has not been specifically

defined in the Act. Thus, we will have to go by the meaning of

this expression given in the General Clauses Act, on which the

ld. DR has laid a great deal of emphasis.

22.3. Section 27 of the General Clauses Act, 1897, deals with

the meaning of `service by post’. It states that: `Where any

(Central Act) or Regulation made after the commencement of

this Act authorizes of requires any document to be served by

post, where the expression "serve" or either of the expressions

"give" or "send" or any other expression in used, then, unless a

different intention appears, the service shall be deemed to be

effected by properly addressing pre-paying and posting by

registered post, a letter containing the document, and unless the

contrary is proved, to have been effected at the time at which the

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letter would be delivered in the ordinary course of post’. It is

manifest from the mandate of section 282 of the Act read with

section 27 of the General Clauses Act that these provisions deal

with the service of notice and more particularly the service of

notice by post. Section 27 provides that service by post shall be

deemed to be effected by properly addressing, pre-paying and

posting by registered post. It means that when a letter containing

the document is properly addressed, pre-paid and posted by a

registered post, it will be considered as a valid service. It is not

the end of the provision. There is a specific mention of the

words `unless the contrary is proved’. It means that the

presumption of valid service on properly addressing, pre-paying

and positing by registered post is not irrebuttable. It can be

rebutted if the contrary is proved. Extantly, we are dealing with

a situation in which the contrary has been proved inasmuch as

the Department has itself accepted that the notice sent by the

registered post was returned by the postal authorities. Under

such circumstances, there can be no presumption of valid service

of notice in terms of the above provisions.

22.4. The ld. DR has harped on rule 127 to fortify her

contention of valid service of the notice. Sub-section (2) of

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section 282 provides that the Board may make rules providing

for the addresses (including the address for electronic mail or

electronic mail message) to which the communication referred to

in sub-section (1) may be delivered or transmitted to the person

therein named. Pursuant to this provision, rule 127 has been

inserted by the IT (Eighteenth Amendment) Rules, 2015 w.e.f.

02-12-2015. It deals with the `addresses’ at which a notice or

summons etc. may be delivered. Sub-rule (2)(a) has some sub-

clauses dealing with different addresses at which such notices

etc. may be delivered or transmitted. Whereas sub-clause (i)

refers to address available in the PAN database of the addressee,

sub-clause (ii) refers to the address available in the income-tax

return to which communication relates; sub-clause (iii) refers to

the address available in the last income-tax return furnished by

the addressee; and sub-clause (iv) refers to address of registered

office of a company as available on the website of Ministry of

Corporate Affairs. This shows that a notice etc. can be delivered

to an assessee at any of the addresses given in rule 127(2)(a)

which, inter alia, include address available in the PAN and also

the address available in the income-tax return. It means that if a

notice etc. is delivered at the address given in PAN, even if such

26 ITA No.1763/PUN/2013 Anil Kisanlal Marda

address is at variance with the address given in the income-tax

return, it shall be considered as a valid delivery of notice. What

emerges from rule 127 is that it simply provides different

addresses of the assessee at which a notice etc. can be delivered

or in other words served. This rule does not dispense with the

otherwise legal requirement of serving the notice. Its effect is

limited to the extent that if a notice etc. is delivered or served at

the address given in the PAN, which may be different from the

address given in the return of income, the assessee cannot assail

the valid service of such a notice. But the fact of the matter is

that the notice etc. must be delivered at the one of addresses

given in the rule. Simply issuing a notice at the address given in

PAN etc., which is not delivered to the assessee, may satisfy the

requirement of the initial issue of notice at the correct address

but not that of service of such notice until such notice is actually

delivered or served. It can be seen from the discussion made

above that no notice u/s 143(2) was delivered or served upon the

assessee. Thus rule 127 does not assist the case of the Revenue

in any manner. Before parting with this issue, we want to make it

clear that the question as to whether or not the rule 127 will

have retrospective effect is left open as adjudication on this issue

27 ITA No.1763/PUN/2013 Anil Kisanlal Marda

is not warranted in the facts of the instant case since the notice

was not delivered or served upon the assessee at any address.

iv. Whether the notice u/s 143(2) was deemed to have been

issued/served ?

23.1. The ld. DR invoked the provisions of section 292BB to

contend that since the assessment proceedings were attended by

the assessee he cannot now claim that the notice was not issued

or served on him.

23.2. We can better appreciate the contention on having a

glimpse at section 292BB, which runs as under :

“Notice deemed to be valid in certain circumstances.— Where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was— (a ) not served upon him; or (b ) not served upon him in time; or (c ) served upon him in an improper manner:

Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment.".

28 ITA No.1763/PUN/2013 Anil Kisanlal Marda

23.3. This section was inserted by the Finance Act, 2008 w.e.f.

01-04-2008 and thus covers the assessment year/proceedings

under consideration. It provides that where an assessee appears

in any proceedings and co-operates in an inquiry relating to the

assessment etc., it shall be deemed that any notice issued under

any provisions of this Act, which is required to be served, has

been duly served upon him as per law. When it is so, the

assessee shall be prohibited from taking any objection in any

proceedings that the notice was not properly served upon him.

The proviso to this section states that if an assessee raises an

objection before the completion of assessment that the notice

was not properly served, then the provision deeming a proper

service on attending the assessment proceedings etc., shall not

apply. Further, what is relevant to note is that this section

dispenses with the requirement of `service’ of notice in the given

circumstances and not the `issue’ of notice. If a particular

provision requires issue of notice within a stipulated period and

no notice is actually issued, even though the requirement of

service of notice will stand satisfied with the assessee attending

the assessment proceedings, but the Revenue will still have to

29 ITA No.1763/PUN/2013 Anil Kisanlal Marda

independently prove that the notice was issued. If issuance of a

notice is not established, the adverse consequences will follow.

23.4. Since the proviso to section 143(2) talk of service of

notice and not issue of notice, let us examine if the notice u/s

143(2) was served on the assessee in terms of section 292BB on

his attending the assessment proceedings.

23.5. The assessee has placed on record a copy of his letter

dated 28-11-2011 addressed to the DCIT, Circle-3, PMT

Building, Pune objecting to the service of notice dated 08-09-

2010 purportedly issued u/s. 143(2) and served upon him. The

assessee categorically stated that “I would like to state that the

said notice 08-09-2010 has not been received by me”. It has

also been mentioned in para 4 of the assessee’s aforesaid letter

that “hence, this notice is not a valid notice and bad in law. I

request you to please quash the assessment proceedings”. This

letter of the assessee bears the stamp of the office of ACIT,

Circle-3, Pune with the date of 28-11-2011. On examination of

the assessment folder produced before us by the ld. DR, it is

found that the original of this letter bearing the date of receipt by

the office of ACIT, Circle-3 as 28-11-2011, is available there.

30 ITA No.1763/PUN/2013 Anil Kisanlal Marda

The assessment order in this case was passed on 30-12-2011.

Thus, it is proved that the assessee did raise objection of the

non-service of notice before the AO before the completion of

assessment and such an objection has not been disposed of by

the AO either in the assessment order or otherwise. It is evident

from the assessment folder that notice u/s.143(2) dated 08-09-

2010 was issued but never served upon the assessee and, in fact,

returned by the postal authorities. It is further clear that no other

notice u/s. 143(2) was issued by the AO before the cut-off date

of 30-09-2010. Accordingly, proviso to section 292BB gets

magnetized and the deemed service of notice u/s.143(2), by

virtue of the main part of the section 292BB, is erased.

an admitted position that no notice u/s. 143(2) was actually

served upon the assessee on or before 30-09-2010. The only

notice which was issued on 08-09-2010 was returned by the

postal authorities and thereafter no effort was made to serve

another notice before the deadline. Since the requirement of

`service’ of notice u/s. 143(2) and not its `issue’, is a

jurisdictional condition, which is unfortunately lacking in the

instant case, the sequitur is that the AO lacked jurisdiction to

31 ITA No.1763/PUN/2013 Anil Kisanlal Marda

make the assessment. Ex consequenti, the assessment order

passed in absence of a valid jurisdiction has to be and is hereby

quashed.

want of service of notice u/s. 143(2), there is no need to delve

into the grounds raised by the assessee on merits.

Sd/- Sd/- (VIKAS AWASTHY) (R.S.SYAL) �ाियक सद� /JUDICIAL MEMBER उपा��/ VICE PRESIDENT पुणे Pune; �दनांक Dated : 01st July, 2019 सतीश आदेश आदेश क� आदेश आदेश क� क� �ितिलिप क� �ितिलिप �ितिलिप अ�ेिषत �ितिलिप अ�ेिषत अ�ेिषत/Copy of the Order is forwarded to: अ�ेिषत

अपीलाथ� / The Appellant; 1. ��यथ� / The Respondent; 2. आयकर आयु�(अपील) / 3. The CIT (Appeals)-II, Pune 4. The CIT-II, Pune िवभागीय "ितिनिध, आयकर अपीलीय अिधकरण, पुणे 5. “बी बी बी” / DR ‘B’, ITAT, Pune; बी गाड( फाईल / Guard file. // True copy // 6.

आदेशानुसार आदेशानुसार/ BY ORDER, आदेशानुसार आदेशानुसार

// True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune

ITA No.1763/PUN/2013 Anil Kisanlal Marda

Date 1. Draft dictated on 27-06-2019 Sr.PS 2. Draft placed before author 01-07-2019 Sr.PS 3. Draft proposed & placed JM before the second member 4. Draft discussed/approved JM by Second Member. 5. Approved Draft comes to Sr.PS the Sr.PS/PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *