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Income Tax Appellate Tribunal, DELHI BENCHES : SMC-I : NEW DELHI
Before: SHRI R.S. SYAL
This appeal by the assessee is directed against the order passed by the CIT(A) on 29.10.2013 in relation to the assessment year 2008-09.
The first two grounds are as under:-
“1. Because, the learned Commissioner of Income Tax (Appeals) erred in not appreciating the fact that the notice u/s 143(2) of the IT Act, 1961 is never served upon the assessee and even neither assessee appeared nor co-operated in assessment proceedings hence entire assessment proceedings are void ab initio.
2. Because, in addition to above the learned Commissioner of Income Tax (Appeals) further erred in not appreciating the fact that notice is stated to be served on a ten year old address, though correct address was on the return itself and despite no compliance/no appearance no effort is made to serve the notice u/s 143(2) at the correct address and hence order passed u/s 144 is beyond jurisdiction.”
Briefly stated, the facts of the case as culled out from the assessment order are that the assessee filed his return which was processed u/s 143(1) of the Act. A notice dated 14.8.2009 u/s 143(2) generated on the system was issued and served through affixture by ITI at the address which appeared on the notice u/s 143(2) generated by the system – WZ 32, Chukhandi Post Office, Tilak Nagar, New Delhi. The assessment order records that : `The ITI has reported that at the given address the assessee do not reside due to which notice was served by affixture’. In the absence of any participation from the side of the assessee, the assessment was completed u/s 144 of the Act, making an addition of Rs.12.41 lac. The ld. CIT(A) upheld the assessment order.
Aggrieved thereby, the assessee is in appeal before the tribunal.
The above extracted two grounds project the grievance of the assessee in non-service of notice by the AO u/s 143(2). The ld. AR stated that the assessee was earlier engaged in the business of purchase and sale of gifts, etc., which was later on converted to precious metals alone. The assessee filed his return giving the address of Plot No.30, Dwarka Apartment, Shalimar Garden, Sahibabad, whereas no notice was ever served u/s 143(2) at the given address because the Department firstly issued the notice and then tried to serve it by affixture at a wrong address as indicated in the assessment order itself, namely, WZ-32, Chukhandi Post Office, Tilak Nagar, New Delhi. The ld. AR submitted that the assessee was residing at this address ten years ago. As no notice u/s 143(2) was served on the assessee, which was apparent from the fact that the assessment order has been passed u/s 144, it was prayed that the assessment be annulled. In support of the annulment, the ld. AR relied on certain decisions including that from the Hon’ble jurisdictional High Court. This was vehemently opposed by the ld. DR who submitted that notice u/s 142(1) was properly served and it was the mistake of the assessee in not properly conveying his correct address to the Revenue.
The ld. DR invited my attention towards the fact that the assessee was frequently changing his address. It was pleaded that section 292BB will take care of the sending of notice at wrong address and hence the assessment order cannot be declared a nullity. Apart from that, the ld. DR also submitted that the issue challenging the validity of issuance of notice u/s 143(2) was not raised before the ld. CIT(A) and, hence, the same should not be allowed to be taken up before the Tribunal.
I have heard the rival submissions and perused the relevant material on record. In so far as the preliminary objection of the ld. DR about not taking up the question of non-service of notice u/s 143(2) before the ld. CIT(A) is concerned, I have noted that there is no specific ground challenging such issue before the ld. first appellate authority.
However, Statement of facts and submissions filed before the ld. CIT(A) discuss this aspect of the matter. Be that as it may, since the challenge to the issuance of notice u/s 143(2) is a pure question of law, in my considered opinion, it can be taken up even for the first time before the Tribunal de hors its consideration at the level of the ld. CIT(A). The Hon’ble Supreme Court in NTPC vs. CIT (1998) 229 ITR 383 (SC), has held that a legal ground can be taken up for the first time provided no fresh investigation of facts is required. As the address at which notice was served u/s 143(2) has been given in the assessment order itself, and further, the correct address of the assessee is borne out from the copy of the return filed with the Department, in my considered opinion, no fresh probing of facts is necessary. I, therefore, admit these two grounds for adjudication.
On merits, it is noticed from the assessment order that notice u/s 143(2) was sent at the address WZ-32, Chukhandi Post Office, Tilak Nagar, New Delhi, which was served by affixture as the ITI reported that the assessee was not residing at the given address. This shows that the AO served the notice u/s 143(2) by affixture at the address WZ-32, Chukhandi Post Office, Tilak Nagar, New Delhi. A copy of return of income for the relevant year is available at page 4 of the paper book, which divulges the assessee’s address as Plot No.30, Dwarka Apartments, Shalimar Garden, Sahibabad. When the assessee has clearly given his address on the face of the return itself, the natural presumption is that it was the correct address of the assessee for further communication. The AO has admittedly served a notice by affixture at the wrong address, namely, WZ-32, Chukhandi Post Office, Tilak Nagar. The Hon’ble jurisdictional High Court in CIT vs. Salarpur Cold Storage Pvt. Ltd. (2014) 50 taxmann.com 105 (All), has held that where the AO fails to issue notice u/s 143(2) within the stipulated period, the assumption of jurisdiction to frame the assessment u/s 143(3) becomes invalid and this defect cannot be cured even by taking recourse to deeming fiction u/s 292BB. A copy of the judgment has been placed on record. Similar view has been taken in certain other decisions, copies of which have been made available by the ld. AR, holding that if notice u/s 143(2) is not served on the assessee within the period prescribed in proviso to section 143(2), no valid assessment can be framed. Adverting to the facts of the instant case, it is found as an admitted position that the 6 notice was affixed at the wrong address, which was never served on the assessee, as a consequence of which assessment was completed u/s 144 of the Act. Since the jurisdictional condition for making assessment, namely, the issue of notice u/s 143(2) was not satisfied, in my considered opinion, no valid assessment cannot follow. Respectfully following the judgment of the Hon’ble jurisdictional High Court in Salarpur Cold Storage Pvt. Ltd. (supra), I set aside the impugned order and declare the assessment to be invalid.
In view of the decision on the above legal ground, there is no need to deal with the merits of the addition.
In the result, the appeal is allowed.
The order pronounced in the open court on 16.06.2016.