NARENDER SINGH SURANA,GHAZIABAD vs. ITO, NEW DELHI

The present appeal has been filed by the assessee against the order dated 31/03/2013 passed by the Ld. CIT (A) 12, New Delhi for assessment year 2009-10 on the following grounds of appeal:

The Ld. AO thereafter called for information from the Sub Registrar-IV, Ghaziabad vide letter dated 30/11/2011, on the sale of property mentioned as per the AIR information. The Ld. AO gave final opportunity on 21/12/2011 to the assessee to attend the proceedings. In response to this letter the assessee filed a letter dated 22/12/2011 in which he had sought to explain and deny the alleged sale of property. In the said letter assessee had also disputed the name that appeared in the AIR information as not being the assessee under consideration. The Ld. AO again fixed the case for hearing on 26/12/2011 as none appeared on the even date nor any reply was received from the assessee on 27/12/2011 a final reminder was issued to the assessee to appear on 29/12/2011. None appeared on 29/12/2011 and therefore the AO proceeded to pass the assessment order. He disposed of the objection of the assessee regarding non-receipt of notice under section 143 (2) and the same has been served upon the assessee beyond the period of limitation on 21/12/2011. The Ld. AO did not accept this objection as he opined that the notice has been served on 30/09/2011 by a fixture and was within the statutory time limit as per the act the Ld. AO pass an assessment order under section 143 (3) read with 144 of the act and made an addition of Rs.74,95,600/-in the hands of the assessee.

Aggrieved by the order of the Ld.AO the assessee preferred an appeal before the Ld.CIT(A) wherein the preliminary objection regarding assuming their jurisdiction to pass the assessment order was challenged as the assessee had not received the notice under section 143 (2) within time. The Ld. CIT (A) rejected this objection of the assessee and confirmed the addition made by the Ld. AO.

Aggrieved by the order of the Ld. CIT (A) the assessee is in appeal before us now the Ld.AR submitted that the assessing officer had no jurisdiction to pass any order as no notice under section 143 (2) of the act was served upon the assessee within the statutory period and discharged under section 143 (2) (iii) of the act he submitted that the notice under section 143 (2) was served upon him on 23/09/2011 which is beyond the period of limitation. The Ld.AO has submitted before us a small compile Asian of supplementary paper book which contains the copy of information sought by the assessee under the Right to information act. He submitted that the application under Right to information act was made on 10/02/2016 filed by the assessee which was disposed of by the CPIO and ITO Ward 24 (2) on 03/03/2016. The assessee had sought information in respect of the service of notice under section 143 (2) for the year under consideration in case of assessee.

The Ld. AR submitted that assessee had filed its return of income for the year under consideration wherein the address has been mentioned as flat No. 705, 7th floor, Neelabmer-II, Kaushambi, Ghaziabad, Uttar Pradesh-11 (placed at 69 to 70 of the supplementary paper book). The Ld.AR submitted that the name of the assessee as appearing on the return of income is, Narendra Singh Surana whereas the details on the notice under section 143 (2) reads as Sh. Narinder Singh Sharma and the address to be A-35, Chander Nagar, Ghaziabad, (UP) (placed at 68 and 71 of the supplementary paper book).

He further submitted that the Ld. AO had by way of a fixture of fixed the notice under section 143 (2) on 29/9/2010 on the address at Chander Nagar and subsequently on 23/09/2011 the Ld. AO after enquiry came to know about the office address of the assessee being Sarita Electronics Pvt. Ltd., situated at 1649, 4th floor, meanwhile that Paharganj New Delhi. He thus submitted that it was then that the AO could hand over the notice under section 143 (2) in the name of Narender Singh Sharma having a wrong address to the assessee before us.

The Ld. AR thus in the circumstances submitted that the assessing officer does not have any jurisdiction to pass the impugned assessment order and prayed for setting aside the same.

On the contrary the Ld. DR submitted that the service of notice was effected by speed post and as the assessee participated in the assessment proceedings by virtue of section 292B of the act with technical hurdles should not be considered regarding non-issuance of the notice under section 143 (2) beyond the period of limitation. He submitted that on initial appearances of the representative on behalf of the assessee there was no objection raised in respect of non receipt of the notice under section 143 (2) and the subsequent objection was an afterthought by the assessee. The Ld. DR supported the orders passed by the parties below.

We have perused the contentions raised by both the sides in the light of the records presented before us. There is no doubt that the notice under section 143 (2) has been issued beyond the period of 6 months from the end of the assessment year in which the original return of income has been filed. It is also observed that the name and address appearing on the notice under section 143 (2) is not the assessee before us. The assessee has submitted the extract of the speed post booking list as on 20/8/2010 wherein certain document has been dispatched to Sh. Narender Singh Sharma having address at Ghaziabad (UP). On perusal of the return of income filed by the assessee we note that the assessee is not the same person as mentioned in the dispatch list, notice issued under section 143 (2) and the intimation of the Ld. AO regarding a fixture of the notice placed at page 68. It is also noticed from the fixture intimation regarding the premises, where such a fixture was made. Further there is no mention regarding who identified the premises where the notice was fixed and the name and address of the person witnessing such a fixture.

A perusal of sub section 2 to section 143 reveals that the notice under this section is not only to be issued but has to be served before the expiry of 6 months from the end of the financial year in which the return was furnished. In the present case no valid notice has been served upon the assessee within the prescribed period and was served much beyond the period of 6 months which is not a valid service in the eyes of law. It has been argued by the Ld. DR that even if the notice under section 143 (2) was not properly served on the noticee should be treated as a defect and such irregularities curable under section 292B of the Act.

We are afraid that resort cannot be had to the specific provision to validate the mandatory requirement of service as postulated under section 143 (2) of the act where there is a specific requirement of service on the assessee and the same has not been complied with, cannot be sure it as a merely defect under section 292B.

On the basis of the above discussion we hold that no valid notice under section 143 (2) has been served upon the assessee within that time prescribed and therefore the assessment made by the assessing officer is invalid.

The assessee’s appeal has been held on the legal issue where in the assessment order passed by the assessing officer has been quashed we do not wish to decide the up ground No. 2 and 3 on merits.

Accordingly the appeal filed by the assessee stands allowed.