HARVINDER SINGH JAGGI,NEW DELHI vs. ACIT, NEW DELHI

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: ‘C’: NEW DELHI BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. O.P. KANT, ACCOUNTANT MEMBER ITA No. 672/Del/2013 Assessment Year: 2007-08 Sh. Harvinder Singh Jaggi, D- Vs. The Asstt. Commissioner of 13B, East of Kailash, New Delhi- Income Tax, Circle-22(1), Civic 110065, Centre, New Delhi-110002 (PAN: AAEPJ2007N) (Appellant) (Respondent)

Appellant by S/sh. J.S. Kochar, FCA & Udaibir Singh Kochar, Adv. Respondent by Sh. T. Vasanthan, Sr.DR Date of hearing 14.12.2015 Date of pronouncement 12.02.2016 ORDER PER O.P. KANT, A.M.: The present appeal by the assessee is directed against the order dated 30.10.2012 of the Commissioner of Income Tax (Appeals)-XI, New Delhi, passed for the assessment year 2007-08, raising following grounds of appeal: 1. That, on the facts and circumstances of the case, the learned Commissioner of Income Tax(Appeals) erred in holding that the mandatory notice (dt. 21.07.2008), issued u/s 143(2) of the Income Tax Act, 1961 by Income Tax Officer, Ward 19(4), was served on the assessee. 2. That the learned Commissioner of Income Tax(Appeals) erred in law by holding that the notice issued by Income Tax Officer, Ward 19(4) u/s 143(2) was a valid notice despite the fact that the Income Tax Officer, Ward 19(4), was not “the Assessing Officer” in terms of the jurisdiction order no. Addl.CIT/R-19/2005-06/356 dated 31.03.2006.

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Again a fresh notice under Section 143(2) of the Act was issued by Asstt. Commissioner of Income Tax on 02.04.2009 along with notice under Section 142(1) of the Act. Notices under Section 143(2) of the Act were again issued by the Asstt. Commissioner of Income Tax on 24.02.2009 and 12.06.2009. The notice dated 12.06.2009 was claimed to be served on one Sh. Kailash by the Assessing Officer, however, the assessee disputed the service of the said notice. Subsequently, the case was stated to be assigned to the Additional Commissioner of Income Tax, Range 19, New Delhi, who was having concurrent jurisdiction over the case, for completion of the assessment. She issued notices under Section 143(2) of the Act on 15.07.2009 and 20.08.2009. The notice dated 20th August, 2009 was served through speed post at another address i.e. D-13B, 1st Floor, East of Kailash, New Delhi. In response to the notice, the Authorized Representative attended before the Addl. Commissioner of Income Tax i.e. the Assessing Officer having concurrent jurisdiction and challenged the validity of the notice under section 143(2) of the Act dated 20th August, 2009. According to him, the return was filed on 25th October, 2007 and in terms of proviso to section 143(2), notice under Section 143(2) could have been served latest by 13.09.2008, whereas the notice under reference i.e. notice dated 20th August, 2009 was beyond the period of limitation prescribed under the law. He further submitted that the assessee had not been served any notice prior to the notice dated 20th August, 2009. He also submitted that in view of the order no. Addl.CIT/R-19/2005-06/356, dated 31.03.2006, the jurisdiction of the

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case of the assessee vested with the Asstt. Commissioner of Income Tax, Circle 19(1), New Delhi and the assessee was not aware of subsequent order vesting the jurisdiction of the case of the assessee with the Addl. Commissioner of Income Tax. In response to the letter of the Authorized Representative, the Addl. Commissioner of Income Tax replied that the first notice was issued to the assessee on 23.07.2008 which was sent through speed post and therefore, the first notice issued was well within one year of the filing of the return. She also explained that the jurisdiction to her was assigned under the order of concurrent jurisdiction. The Addl. Commissioner of Income Tax again fixed the case on 09.11.2009 through a notice issued under Section 143(2) of the Act. In response to which, the Authorized Representative again objected the assessment proceedings on both ground i.e. service of first notice as well as jurisdiction of Addl. Commissioner of Income Tax. The notice dated 04.11.2009 was sent on new address provided by the ld. Authorized Representative. Again on 20th November, 2009, the ld. Authorized Representative filed objection challenging the service of notice as well as jurisdiction of Addl. Commissioner of Income Tax. The Authorized Representative also filed an affidavit from the assessee dated 11th November, 2009, claiming non-service of the first notice from the ITO, Ward 19(4), New Delhi. In the affidavit, the address mentioned was new address of the assessee as against the address of the assessee mentioned in the return of income. The Addl. Commissioner of Income Tax provided proof in support of sending of the first notice under Section 143(2) through speed post

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and copy of the receipt provided by the Postal Department, having proof that the notice was sent by the speed post. After this date, all the correspondences have been made by the Assessing Officer at the new address of correspondence with a copy also endorsed at the address provided in the return of income. Finally, one more notice under Section 143(2) of the Act was sent at the new address of correspondence as well as at the address provided in the return of income on 18.12.2009. However, the same was also not complied. The notice dated 18.12.2009 was served on the wife of the assessee at the new address of correspondence. In view of the non-compliance, the Assessing Officer assessed the income at the estimated income of Rs. 80 lakhs. Aggrieved, the assessee filed an appeal before the ld. Commissioner of Income Tax (Appeal) and challenged the assessment of income at Rs. 80 lakhs on estimated basis as against the returned income of Rs. 58,99,680/-. The assessee also raised grounds as regard to the validity of the assessment on the ground that mandatory notice under Section 143(2) of the Act was not served within the limitation period. The assessee also raised the issue that the Addl. Commissioner of Income Tax was not authorized by the Commissioner of Income Tax under Section 127 of the Act to pass the order in the case of the assessee. As regard to quantum of addition, the ld. Commissioner of Income Tax (Appeal) after allowing the opportunity, gave relief and assessed income at Rs. 75,01,602/-. In respect of the legal issues raised, the ld. Commissioner of Income Tax (Appeal) upheld the

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findings of the Assessing Officer. Aggrieved, the assessee is before us with the present appeal. 4. As the assessee did not press ground nos. 4 and 5, the same are dismissed as not pressed. 5. 1 As regard to ground no. 1 of the appeal, ld. Authorized Representative of the assessee submitted that the notice alleged to be sent by the speed post at the address of the assessee, was not served. He further submitted that the Assessing Officer relying on the provisions of Section 27 of the General Clauses Act held that the mandatory notice under Section 143(2) of the Act was served on the assessee whereas the assessee had rebutted the presumption of service by categorically denying on affidavit that he had received the notice issued on 21.07.2008 by ITO, Ward 19(4), New Delhi. In support of his contention, he relied on the judgment of the Hon’ble Delhi High Court in the case of CIT Vs. Silver Streak Trading P. Ltd., (2010) 326 ITR 418 (Delhi) and CIT Vs. Messrs Lunar Diamonds Ltd., (2006) 281 ITR 1 (Del. ). 5.2 On the other hand, learned Sr. Departmental Representative relying on the findings of the lower authorities submitted that merely filing of an affidavit denying receipt of the letter sent through speed post was not sufficient to rebut the presumption of service of notice when the notice was duly sent by speed post at the address given in the return of income. He further submitted that the assessee in the affidavit has made self serving averments and no documentary evidence has been brought on record whereas the Assessing Officer has duly

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brought to his knowledge the proof gathered from the Postal Department that notice was duly sent at the address given by the assessee in the return of income, therefore, the assessee did not success in rebutting the presumption under the General Clauses Act. 6. We have heard rival submissions and perused the material on record including the assessment folder of the case. As far as the fact of sending notice on 21.07.2008 by Income Tax Officer, Ward 19(4), New Delhi, at the proper address which was provided by the assessee in the return of income has not been doubted by both the parties. The issue in dispute is whether the notice sent by the postal department was served on the assessee or not. The Revenue is contending that the letter did not return back and therefore, it was presumed to be served as far as General Clauses Act is concerned, whereas the assessee is denying that no such notice was served on the assessee, or the assessee did not receive any such notice at the given address. 7. Before we decide the issue of validity of service of notice, we would like to refer the relevant provisions of the Act and judicial pronouncements on the issue in dispute. 7.1 The section 282 of the Act has provided various methods of service of notice as under: “282.(1) 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,—

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(a) by post or by such courier services as may be approved by the Board; or (b) in such manner as provided under the Code of Civil Procedure, 1908 (5 of 1908) for the purposes of service of summons; or (c) in the form of any electronic record as provided in Chapter IV of the Information Technology Act, 2000 (21 of 2000); or (d) by any other means of transmission of documents as provided by rules made by the Board in this behalf. (2) 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. Explanation.-…………………………………………………………………….”

7.2 It has been held by various courts that the service of notice by post include service by speed post as well. In the cases of CIT Vs. Silver Streak Trading P. Ltd., (supra) cited by the assessee, it was claimed by the assessee that the return of income was filed on November 30, 1997 and a notice under section 143(2) of the Act was issued by the Assessing Officer through speed post on November 28, 1998 but the assessee claimed that said notice was not ever received and a duplicate copy of notice dated October 21,1999 was received by the learned counsel of the assessee, who endorsed the office copy with the remark “ time barred notice received” and this was followed by an affidavit by the assessee stating that it had not received any notice prior to the notice dated October 21, 1999. The Hon’ble Court held that in such a case onus was on the Revenue to show that the notice dated November 28, 1998 was in fact served on the assessee within the time prescribed by the law and the Revenue had not been

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able to discharge its onus either before the Tribunal of before the Hon’ble Court and the appeal of the Revenue was dismissed holding that no substantial question of law arose. In the CIT Vs. Messrs Lunar Diamonds Ltd., (2006) 281 ITR 1 (Del. ) again similar issue was raised and the Hon’ble Court has given finding similar to the given in the case of Silver Streak Trading P. Ltd.(supra). 7.3 But on analysis of the facts of the above cited cases, we find that facts of the case of the assessee are different then the cases cited. In the case of Silver Streak Trading P. Ltd.(supra), the Revenue failed to bring on record to suggest that notice dated November 28, 1998 was in fact served upon the assessee on November 30, 1998 . The relevant part of the judgement is reproduced as under:

“11. In so far as the present case is concerned, it is not the case of the assessed that it ever received notice dated 28th November, 1998. In fact, its case has been that the only notice ever received by it was the one dated 21st October, 1999. In the duplicate copy of the notice dated 21st October, 1999, learned Counsel for the assessed had made an endorsement that he has received the time barred notice. This was followed by an affidavit by the assessed stating that it had not received any notice prior to the notice dated 21st October, 1999. In a case such as this, the onus is clearly upon the Revenue to show that the notice dated 28th November, 1998 was, in fact, served on the assessed within the time prescribed by law. The Revenue has not been able to discharge its onus either before the Tribunal or before us. We, therefore, find that no substantial question of law arises and the appeal is dismissed.” 7.4 Whereas in the present case, the Revenue has provided enough proof that the notice was sent through speed post at the correct address provided in the return of income. Further, in the case of Lunar Diamonds Ltd. (supra), the receipt issued by the postal authorities was only containing name of the assessee and thus it was submitted by the assessee that there was a possibility that the correct address of the assessee might not have been written on the envelope and

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therefore the notice was not served to the assessee, but in present case the correct address was mentioned in the receipt issued by the postal authorities. Thus the cases cited by the assessee are distinguishable on facts. 7.5 In the case of Milan Poddar Vs CIT reported in [2012] 24 taxmann.com 27, the Hon’ble High Court of Jharkhand has dealt the issue of notice of service though speed post and rebuttable presumption of the service and held that when the dispatch has been proved by the receipt number of speed post and the notice has been sent at correct address, it is presumed that the notice was delivered to the assessee. The relevant paragraph of the judgement is reproduced as under: 14. From a bare perusal of the order-sheets, shown to us by the assessee, started from dated 24.10.2007, it is clear that in the order- sheet dated 24.10.2007, on the top of it, the name and address of the assessee was mentioned and thereafter it was ordered that notice under Section 143(2) be sent. The notice, in fact, was sent on 24/25.10.2007 and its receipt number is given in the order of the Assessing officer which is, receipt no. 4544 and "Speed post" number is also given which is EE875408254 IN, dated 25.10.2007. So far as dispatch of the notice under Section 143(2) of the Act of 1961 is concerned, that question is fully proved. 15. Learned counsel for the appellant vehemently submitted that mere proof of dispatch of post is not the proof of service of the notice upon the receiver. 16. In a matter of service through post, there are certain ways whereby notices are sent through department of post. In this case, as we have already discussed that in the order sheet, name and address of the assessee was mentioned and address is wrong was not the plea of the assessee. Therefore, Department sent the notice under Section 143(2) of the Act to the Assessee on the assessee's address, and that too through Speed Post which is more reliable mode therefore, it is required to be presumed that notice was delivered to the addressee. The notice sent through "Speed-post" did not return to the Income Tax Department as undelivered and since Income Tax Department sought

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information from the Postal Department with respect to the actual service of the post upon the assessee after the expiry of a period of three months and by that time, the record was weeded out, the only evidence, which could have been produced by the Department, is the proof of the dispatch of the notice and not of not-receiving the said post bade by the Department. Against this evidence of Department, there is only word of mouth of the assessee that he did not receive the notice under Section 143(2) of the Act. In that fact situation, the Assessing Officer as well as the Tribunal were fully justified in accepting the contention of the Income Tax Department that notice was duly sent and since it was not returned back as undelivered, it was deemed to have been delivered to the assessee. 7.6 As regards to the rebuttal of the presumption, the Hon’ble Court has already held that only word of mouth of the assessee that he did not receive the notice are not sufficient for establishing rebuttal of presumption. Further, the Hon’ble Court has held that the notice has not been returned back, it is presumed to be served . The relevant paragraphs are reproduced as under: 17. So far as dispute with respect to the interpretation of the "Post", "Registered Post" and "Speed Post" are concerned, the Tribunal has considered the issue in detail. We would like to quote the relevant paragraphs from the order of the Tribunal, which are as under :- 11. …. 12. ….. 13. … 14. …. 15. …. 16. … 17. …. 18. … 19. … 20. … 21. …

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responsible for its non-service. The details given by the AO in the assessment order included not only the receipt no. under which speed post was sent but also the tracking code. Perusal of the assessment order shows that the AO had apprised the assessee of the aforesaid facts in the course of assessment proceedings also. It was therefore for the assessee to adduce relevant evidence to prove that the said notice was not served upon him and also that he was not responsible for its non-service. However, the assessee has not adduced any evidence to prove so in spite of the fact that he could have done so with the help of details made available in the assessment order and also in the notice issued to him in the course of the assessment proceedings. Additionally, the AO has verified his records and found that the impugned notice was not received back in his office. In this view of the matter, the legal fiction by which the service of the impugned notice is deemed to be effected on the assessee stands on a much stronger footing.( emphasis supplied) We are in full agreement with the reasons given by the Tribunal with respect to the interpretation given by the Tribunal on various issues decided by the Tribunal which we have quoted above. 7.7 Thus, we can summarize that for a valid service of notice following conditions should be fulfilled: (i) the notice should have been sent through any of the modes mentioned in section 282 of the Act (ii) The name and address should be correctly written over the notice and the envelope containing the notice and the envelope should be delivered to the postal authorities for service. (iii) The Revenue should show the receipt of postal authorities and/or tracking number of post office to establish valid dispatch of notice, (iv) If the notice is not returned then it shall be presumed that it was served validly.

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(v) The presumption can be rebutted by the assessee by filing evidences in support but the rebuttable by merely word of mouth of the assessee that he did not receive the notice are not sufficient for establishing rebuttal of presumption 7.8 Now when we revert back to the facts of the assessee, we find that in the case of the assessee the notice was sent though speed post and the receipt of postal authorities is available on record. The Assessing Officer has also submitted that the said notice was not returned back. The assessee has however filed an affidavit claiming that said notice was not received. Thus , in the case of the assessee the dispute lies whether the presumption stands rebutted by the assessee or not. The assessee has filed an affidavit stating that said notice was not served, however, in the affidavit, the assessee has not furnished any reasons or evidences as to why the notice sent at correct address could not be served on the assessee. 7.9 In the case of the assessee, there is one important fact which needs to be noticed is that the New address of the assessee in the affidavit, i.e., D-13B, 1st Floor, East of Kailash, Delhi, which is different from the address provided in the return of income i.e. Delta Exports, B-33/1, Group Industrial Area, Wazirpur, Delhi, which goes to show that the assessee has changed his address and the new address was not communicated to the Income Tax Department. The onus to communicate the correct address or change of address to the Department either applying through prescribed form for making correction in permanent account

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number (PAN) database or communication to the Assessing Officer was on the assessee, which the assesses failed to do so. The notice u/s 143(2) of the Act for selection of case under scrutiny in the case of assessee has been generated through the income tax department application software, in which address has been picked up from PAN database and the notice was sent by the Income Tax Officer before the limitation of service of notice i.e. more than two months prior to the limitation. In the present case, the fact of change of address by the assessee has not been highlighted and therefore, the facts of the present case are different from the facts of the cases cited by the assessee. In view of change of place, the assessee himself is responsible, if at all the notice was not received by him at the old address. In the circumstances, the assessee failed to rebut the presumption of valid service. 7.10 Having given thoughtful consideration of the entire matter in the light of the facts and circumstances of the case, we are of the view that the assessee has failed to rebut the presumption that was raised against him about the due service of the notice u/s 143(2) of the Act. Hence, we hold that the Assessing Officer has complied the requirement of service of notice under Section 143(2) of the Act and notice dated 21.07.2008 was served validly. Accordingly, this ground of appeal is dismissed. 8. As regard to ground no. 2, the assessee has challenged the notice under Section 143(2) of the Act issued by Income Tax Officer, Ward 19(4), New Delhi which was not a valid notice as he was not the Assessing Officer in terms of the

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jurisdictional order bearing Order no. Addl.CIT/R-19 /2005-06/356, dated 31.03.2006, copy of which is placed at page 11 of the assesee’s paper book. 8.1 Learned Authorized Representative of the assessee submitted that the return of income of the assessee was more than the limit prescribed for the jurisdiction of the Income Tax Officer. He drawn our attention to the order dated 31.03.2006 issued by the learned Addl. Commissioner of Income Tax specifying the jurisdiction. Learned Authorized Representative further relied on the judgment of the Hon’ble High Court of Delhi in the case of Sunworld Infrastructure Pvt. Ltd. Vs. Income Tax Officer, WP(C) No. 1741/2015 & C.M. No. 3112/2015. 8.2 On the other hand, learned Senior Departmental Representative drawn our attention to the order dated 31.03.2006 of the learned Addl. Commissioner of Income Tax and stated that the Income Tax Officer was also having jurisdiction in respect of the income or class of income. He submitted that the learned Authorized Representative has not noticed last sentence of para no. 1 of the order. 8.3 We have heard the rival submissions and perused the material on record. The relevant para of the order of the Addl. Commissioner of Income Tax, dated 31.03.2006 is reproduced as under: “1. In exercise of the powers conferred by sub-section (2) of section 120 of the Income Tax Act, 1961 (42 of 1961) and in supersession of all earlier notifications and orders except as respects things done or omitted to be done before such supersession. I, the Additional Commissioner of Income Tax, Range-19, New Delhi under the charge of CIT, Delhi-VII, New Delhi

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in pursuance of the notification issued by the Central Board of Direct Tax vide Notification S.O. No. 432(E), dated the 31st of July, 2001 read with order No. 2256 dated the 31st of July, 2001 issued by the Chief Commissioner of Income Tax, Delhi, having been so authorized further by the Commissioner of Income Tax, Delhi –VII, New Delhi, vide order dated 1/8/2001, hereby direct that the Dy./Asstt. Commissioner of Income Tax and Income Tax Officers for the charges specified in Column (2) of Schedule-I, hereto annexed shall exercise the powers and perform the functions of Assessing Officer in respect of such cases of classes of cases specified in corresponding entries in column(5) of the said Schedule-I or of such persons of classes of persons specified in the corresponding entries in column (3) of the said Schedule-I and in respect of all incomes or classes of income.”( emphasis supplied) 8.4 On perusal of last sentence of the above para, it is evident that the Income Tax Officer was in addition to the income or class of income specified in schedule was also authorized in respect of all income or class of income. In view of clear position of the authority of the Income Tax Officer in issuing notice, the claim of the assessee that the Income Tax Officer was not having jurisdiction is without proper appreciation of the facts and thus the ratio of the case law relied upon by the assessee is not applicable over the facts of the case in hand, hence, this grounds of the assessee is dismissed. 9. In ground no. 3, the assessee has raised that there was no order under Section 127 of the Act transferring the case to the Addl. Commissioner of Income Tax in exercise of the concurrent jurisdiction vested in her. The learned Authorized Representative submitted that the order passed by the Addl. Commissioner of Income Tax is without jurisdiction. He further relied on the judgment of the Hon’ble Delhi High Court in the case of Valvoline Cummins

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Limited Vs. Deputy Commissioner of Income Tax & Others, (2008) 307 ITR 103 (Delhi). 9.1 On the other hand, learned Sr. Departmental Representative submitted that the order passed by the Addl. Commissioner of Income Tax was well within his jurisdiction and he distinguished the judgment in the case of Valvoline Cummins Ltd. (supra) stating that the said judgment was in respect of recovery proceedings initiated by the Deputy Commissioner of Income Tax subsequent to the completion of assessment by the Addl. Commissioner of Income Tax and therefore the facts of the case were not applicable to the facts of the assessee’s case. 9.2 We have heard the rival submissions and perused the record. We are agreed with the contention of the learned DR that the ratio of Valvoline Cummins Ltd.(supra) is not applicable to the facts in the assessee’s case. As regard to the contention of the learned Authorized Representative that no order under Section 127 of the Act was passed by the Commissioner of Income Tax, the ld. Sr. DR has submitted that the Addl. Commissioner of Income Tax was provided concurrent jurisdiction over the cases through the order of the Commissioner of Income-tax and, therefore, no separate order under section 127 of the Act was required to be passed by the Commissioner of Income-tax. However, no such order of the Commissioner of income-tax conferring the concurrent jurisdiction to the Addl. Commissioner of Income-tax over the cases of the Income-tax Officer is either available on assessment record, or was

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produced before us by the Revenue. Thus, in absence of any such order, it can’t be established that said assessment order passed was within the jurisdiction of the Addl. Commissioner of Income-Tax. Thus, we hold that the assessment completed by the Additional Commissioner of Income-tax in the case being without jurisdiction, is void ab initio. Accordingly, the ground of appeal of the assessee is allowed. 10. In the result, the appeal filed by the assessee is partly allowed. The decision is pronounced in the open court on 12th February, 2016.

Sd/- Sd/- (H.S. SIDHU) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 12th February, 2016. RK/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi