RITA SUMAN,NOIDA vs. ITO, NEW DELHI

Per L.P. Sahu, Accountant Member:

“1. The ld. CIT(A) has erred on facts and in law in dismissing the legal ground in sub-silentio without dealing with it, that the order of the ld. AO is bad in law and on facts, having been passed with a biased mind, in a hurry without giving proper opportunity to be heard and against the principles of natural justice.

2. The ld. CIT(A) has erred in law and on facts in upholding the order of AO which is contrary to law and without jurisdiction on account of non

service of statutory notice u/s 143(2) in time, accepting the report of the AO as gospel truth without any evidence of actual receipt of notice by the assessee.

3. Without prejudice to GOA-1 & 2, the learned CIT(A) has erred in law and on facts in upholding the impugned addition of Rs. 14,53,500/- made by the learned AO on account of alleged unexplained cash credit u/s 68 being unexplained deposits in cash in the bank, rejecting the explanation of the assessee or irrelevant considerations without evidence.

During the assessment proceedings, the Assessing Officer found cash deposit of Rs.14,53,500/- in the assessee’s bank account with the Citizen Co-operative Bank Ltd. Notice u/s. 143(2) of the IT Act, 1961 (hereinafter referred to as “the Act”) was issued to the assessee and the assessee was required to explain the source of deposit. The assessee, as per AO, never responded to the notice issued. Therefore, the AO completed the assessment u/s. 144 of the Act and in absence of any explanation for nature and source of deposits, brought to tax the cash deposit of Rs.14,53,500/- and added the same to the total income of the assessee as unexplained cash credits u/s. 68 of the Act. Being aggrieved, the assessee carried the matter in appeal before the learned CIT(A), who vide order dated 19.10.2012 dismissed the appeal of the assessee. Aggrieved by this order, the assessee preferred this appeal before the Tribunal, who after considering the submissions of the assessee also dismissed this appeal at an earlier occasion vide order dated 17.04.2015. The assessee thereafter moved an application u/s. 254(2) of the Act before the ITAT on the ground that the order of the Tribunal suffers from mistakes apparent on the face of record, inasmuch as the order did not decide by way of speaking finding the question emerged from grounds Nos. 1 & 2 of appeal that for want of non-service of notice u/s. 143(2) on the assessee within the stipulated time, the assessment so made is null and void ab initio. Considering the submissions of the assessee made for rectification of the order, the ITAT Bench-E, New Delhi, recalled the order dated 17.04.2015 vide order dated 04.07.2016. It is how the present appeal has again come up for hearing before the Tribunal.

3.1. In the instant case, the return of income was filed on 22.06.2006.

Accordingly, the notice u/s. 143(2)was legally required to be served on the assessee by 30.06.2007. Notice u/s. 143(2) is stated to have been issued on 28.06.2007 which was deemed to have been received as it did not come back unserved. On the contentions of assessee regarding non-service of such notice, the ld. CIT(A) called for the remand report who reported that the notice was served on the assessee through speed post on 29.06.2007 as per proof of service, on the record. Per contra, the assessee has been denying any such service of notice right from the appellate stage. Now, what is required to examine is whether the Revenue department has any proof of service of notice or not. The contention of the assessee has been that the notice dated 28.06.2007 was dispatched on 29.06.2007 (Friday) by speed post and as such the question of its service by 30.06.2007 does not arise. The assessee has denied the receipt of said notice by way of affidavit filed before the first appellate authority. The contention of the ld. AR has also been that as per order sheet entry of AO second notice u/s. 143(2) was issued on 19.12.2007 for hearing on 19.01.2008, but there is no entry regarding the hearing on 19.01.2008. Subsequently, the notice dated 18.07.2008 was received back unserved with the remarks “incomplete address”. The ld. AR also contended that the decision in the case of Yamu Industries, relied by the ld. CIT(A) is not applicable in the present facts of the case, as in the instant case the department admits to have the proof of service of notice, but no such proof has been filed before any of the authorities. We find substance in the contentions of the assessee. It is notable that in the remand report of the AO, the proof of service of notice dated 28.06.2007 is stated to be on the record of the AO. The hearing in the present appeal was adjourned on two occasions on 29.01.14 and 15.01.2015 directing the Revenue to produce the assessment record so as to establish existence of proof of service as claimed in the remand report. But the same could not be produced for examination. The agitation of assessee regarding dispatch of notice on 29.06.2007 by speed post and its service on assessee on 30.06.2007 also creates doubt on the proper service of notice within the statutory period of limitation. A perusal of the impugned order of ld. CIT(A) shows that the ld. CIT(A) sometimes relies on the statement of AO in remand report that the proof of service of notice is available on record of AO, but at other place she has treated the alleged service as valid relying on the proposition of law laid down in the case of CIT vs. Yamu Industries Ld., 167 Taxman 67, that where notice u/s. 143(2) sent by registered post to the correct address of the assessee had not been received back unserved within a period of 30 days of its issuance, there was a presumption under law that the said notice had been duly served on the assessee within the period of limitation. It is not clear from record in the instant case whether there was proper service of notice supported by proof of service or there was deemed service of notice as observed in the above decision or there was no service at all. The ld. DR has only reiterated the contents of impugned order. In presence of all these facts, in our opinion, it will be appropriate in the interest of justice to restore the issue to the file of Assessing Officer to decide the same afresh as per law after confronting the proof of service of notice to the assessee, which is stated to be available on assessment record as per remand report. In case, the statutory notice is found properly served on the assessee as per law, the assessee would not be entitled to any relief, but if it is found otherwise, the assessment order so passed, would be rendered null and void, as held in various judicial pronouncements.

Needless to say, the assessee shall be given reasonable opportunity of being heard. Accordingly, the appeal of the assessee deserves to be allowed for statistical purposes.

Order pronounced in the open court on 17.01.2017.