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Income Tax Appellate Tribunal, BANGALORE BENCHES “SMC-A”, BANGALORE
Before: Shri George George K
O R D E R This appeal at the instance of the assessee is directed against CIT(A)’s order dated 01.01.2019. The relevant assessment year is 2011-2012.
This appeal was disposed of by the ITAT vide order dated 29.01.2020. The assessee filed a miscellaneous petition since the ITAT had not adjudicated the technical grounds Nos.2, 3 and 4. The ITAT vide order dated 19.06.2020 in MP No.32/Bang/2020, recalled its earlier order for the limited purpose of adjudicating ground Nos.2, 3 and 4. The Ground Nos.2, 3 and 4 read as follow:-
“2. The learned CIT(A) erred in holding that a valid notice u/s 143(2) was served on the Appellant merely relying on report of the Inspector which states that the notice was served by affixture. While, no such notice was served on the Appellant. 3. The learned CIT(A) erred in holding that the assessment was valid as the Appellant participated in the assessment proceedings through an authorized representative. While, the Sri.G.S.Manohar. submission to Learned AO was only for oral enquiries that were made by the Learned AO regarding some transactions that were reported in the AIR and the Appellant or the Authorised Representative was not even aware that assessment proceedings were being carried out.
The Learned CIT(A) erred in concluding that valid notice was served only based on assumptions, while the facts of the matter is that no notice was served as required u/s 143(2) of the Act and therefore the order passed by Learned AO is void ab initio.”
The CIT(A) had decided the issue raised in ground Nos.2, 3 and 4 at para 3.5 of the impugned order. The same reads as follow:-
“3.5 The submission of the appellant and report of the AO have duly been considered. A perusal of the notice under Section 143(2) of the Act shows that the same had duly been generated through the online system by the AO on 07.08.2012 and the dispatch stamp clearly shows that the same was dispatched on 08.08.2012. The report of the inspector also shows that the notice was served through affixture on 14.08.2012 at11.00 Accountant Member in presence of two witnesses. So there is no reason to doubt that the notice was not served on the appellant through affixture. As regards argument of the appellant that he had received refund on the same address of the let out property, it is important to note that once the notice was served through affixture at the said address, where the appellant was not actually staying but the property was let out, the appellant became aware of the same and he himself would have advised the tenants to receive such notices in the future. That is why the refund got served on the same address in the month of November, 2012, which is after the date of affixture of notice under Section 143(2) of the Act. The assessment records also shows that the appellant had participated in the assessment proceedings through an authorized representative namely Mr.Krishna Upadhyay, Chartered Accountant and it is difficult to believe that he was not aware of the proceedings under Section 143(2) of the Act and he was submitting information to the AO just to deal with queries raised by him without any authority of law. Considering these facts, the service of notice under Section 143(2) of the Act is found to be proper and the grounds of appeal 8 to 10 of the appellant are dismissed.”
4. Aggrieved, the assessee has filed this appeal before the Tribunal. The learned AR has filed a paper book enclosing the submissions made before the CIT(A), which includes objections to the remand report. The learned AR submitted that there is no service of the notice u/s 143(3) of the I.T.Act by affixture as stated in the report of the Inspector. It was submitted that the report of the Inspector as regards the affixture of notice was not made available to the assessee. It was contended that by referring to the service of notice by affixture, the details of the witnesses such as the name, address etc. are not mentioned. Therefore, it was contended that the service of notice is not as per the relevant provisions of CPC and relied on the judgment of the Hon’ble Apex Court in the case of CIT v. Ramendra Nath Ghosh [(1971) 82 ITR 888 (SC)].
The learned Standing Counsel, on the other hand, relied on the judgment of the Hon’ble Apex Court in the case of Principal CIT v. M/s.I-Ven Interactive Limited [Civil Appeal No.8132 of 2019 – judgment dated 18th October, 2019] for the proposition that if notice has been issued to the address mentioned in PAN data basis that would be sufficient compliance of service of notice.
I have heard rival submissions and perused the material on record. The CIT(A), in the course of appellate proceedings, had called for a remand report from the Assessing Officer. The Assessing Officer submitted the remand report vide letter dated 06.04.2018. In the said remand report, the A.O. submits that the notice u/s 143(2) has been issued and served on the Sri.G.S.Manohar. assessee. The service of notice was made by affixture in the known address of the assessee, because the postal department returned earlier notice as unserved. Copy of the Inspector’s report as regards the service of notice by affixture was also annexed along with the remand report. The assessee had filed objections to the remand report vide its letter dated 30.04.2018 in which it is stated that if any attempt to serve the notice, the same would have been definitely come to the attention of the assessee. The AR before the Tribunal had doubted the service of notice through affixture because the details of the witnesses such as the name, address etc. are not mentioned. Therefore, according to the learned AR, there is no service of notice by affixture as per the procedures prescribed. This specific plea of the assessee raised before the Tribunal was not raised in the objections to the remand report. The issue on merits was restored to the A.O. by the earlier order of the Tribunal (order dated 29.01.2020). The issue on merits which is restored to the A.O. is still pending before him. The plea of non-serving of notice u/s 143(2) of the I.T.Act was not raised before the A.O. I am of the view that the entire case including the grounds on non-service of notice u/s 143(2) of the I.T.Act and addition on merits need to be considered by the A.O. Therefore, in the interest of justice and equity, the issues raised on technicalities, namely, ground Nos. 2, 3 and 4 are also restored to the files of the A.O. The A.O. shall afford a reasonable opportunity of hearing to the assessee and shall pass an order in accordance with law. It is ordered accordingly.
Sri.G.S.Manohar. 7. In the result, the appeal filed by the assessee is allowed for statistical purposes.