The Dy. C.I.T., Central Circle,, Agra v. Sh. Mahesh Gautam,Prop. M/s Amar Jyoti Packers,, Madhopur

ITA 372/AGR/2010 | 2001-2002
Pronouncement Date: 16-11-2011 | Result: Allowed

Appeal Details

RSA Number 37220314 RSA 2010
Assessee PAN ADXPG4328F
Bench Agra
Appeal Number ITA 372/AGR/2010
Duration Of Justice 1 year(s) 2 month(s) 13 day(s)
Appellant The Dy. C.I.T., Central Circle,, Agra
Respondent Sh. Mahesh Gautam,Prop. M/s Amar Jyoti Packers,, Madhopur
Appeal Type Income Tax Appeal
Pronouncement Date 16-11-2011
Appeal Filed By Department
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 16-11-2011
Date Of Final Hearing 19-10-2011
Next Hearing Date 19-10-2011
Assessment Year 2001-2002
Appeal Filed On 03-09-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI H.S. SIDHU JUDICIAL MEMBER AND SHRI B.C. MEENA ACCOUNTANT MEMBER ITA NOS.371 372 & 373/AGR/2010 ASSESSMENT YEARS: 2001-02 2002-03 & 2003-04 RESPE CTIVELY DY. COMMISSIONER OF INCOME TAX VS. SHRI MAHESH GAU TAM CENTRAL CIRCLE AGRA. PROP. M/S AMAR JYOTI PACKE RS VILL. & POST VEHRA VANDA KHURD KHANDAR SAWAI MADHOPUR (RAJ) (PAN: ADXPG 4328 F) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K. SHARMA JR. D.R. RESPONDENT BY : SHRI PANKAJ GARGH ADVOCATE DATE OF HEARING : 19.10.2011 DATE OF PRONOUNCEMENT : 16.11.2011 ORDER PER H.S. SIDHU J.M.: THE REVENUE HAS FILED THESE THREE APPEALS AGAINST T HE CONSOLIDATED ORDER DATED 01.06.2010 PASSED BY THE LD. CIT(A)-II AGRA FOR THE ASSESSMENT YEARS 2001-02 2002-03 & 2003-04. ITA NOS.371 372 & 373/AGR/2010 A.YS. 2001-02 2002-03 & 2003-04 2 2. SINCE THE ISSUES INVOLVED AND THE GROUNDS RAISED IN ALL THE AFORESAID APPEALS BY THE REVENUE ARE IDENTICAL EXCEPT FOR AMOUNTS IN DISPUTE THEREFORE ALL THESE APPEALS ARE DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 3. SINCE THE GROUNDS TAKEN ARE COMMON FOR ALL THE T HREE ASSESSMENT YEARS GROUNDS RAISED IN ITA NO.371/AGR/2010 FOR ASSESSMEN T YEAR 2001-02 ARE REPRODUCED AS UNDER :- GROUNDS IN ITA NO.371/AGR/2010 FOR A.Y. 2001-02 1. WHETHER ON THE FACTS AND IN EH CIRCUMSTANCES OF THE CASE CIT(A) HAS ERRED IN COMING TO THE CONCLUSION THAT N OTICE WAS NOT VALIDLY SERVED ON THE ASSESSEE EVEN THOUGH IT WAS S ENT THROUGH POST IN THE LAST KNOWN ADDRESS AS PER RECORD OF THE OFFICE. 2. IN DOING SO CIT(A) EVEN FAILED TO APPRECIATE THE FACTS THAT ONLY THE NOTICES ISSUED U/S 148/143(2) WERE NOT RECEIVED BUT THE ASSESSMENT ORDER SENT AT THE SAME ADDRESS WERE RECEIVED BY THE ASSESSEE WHICH CLEARLY SHOWS AN DELIBERATE ATTEMPT BY THE ASSESSEE TO THWART THE PROCEEDINGS OF THE I.T. ACT. 3 THE ORDER OF THE CIT(A) IS PERVERSE IN AS MUCH IT IS NOT BASED ON THE CORRECT AND COMPREHENSIVE APPRECIATION OF FA CTS OF THE CASE AS GIVEN IN THE BODY OF THE ASSESSMENT ORDER. 4. THAT THE ORDER OF THE LD. CIT(A) BEING ERRONEOUS IN LAW AND ON FACTS BE VACATED AND THE ORDER OF THE ASSESSING OFF ICER BE RESTORED. 5. THAT THE APPELLANT CRAVES LEAVE TO AMEND ANYONE OR MORE OF THE GROUNDS OF THE APPEAL AS STATED ABOVE AS AND WHEN N EED FOR DOING SO MAY ARISE. ITA NOS.371 372 & 373/AGR/2010 A.YS. 2001-02 2002-03 & 2003-04 3 4. THE FACTS RELATING TO THE ISSUE IN DISPUTE FOR THE ASSESSMENT YEAR 2001-02 ARE THAT THE ASSESSEE IS AN INDIVIDUAL FILED HIS OR IGINAL RETURN OF INCOME ON 29.10.2001 DECLARING HIS INCOME AT ` 6 33 840/- AND THE ASSESSING OFFICER COMPLETED THE SAME UNDER SECTION 143(3) OF THE INCO ME TAX ACT 1961 (THE ACT HEREINAFTER) ON 25.03.2004 AT THE INCOME OF ` 7 79 710/-. THEREAFTER THE ASSESSING OFFICER RECEIVED AN INFORMATION FROM CENTRAL EXCISE DEPARTMENT NEW DELHI AND ON THAT BASIS HE ISSUED NOTICE UNDER SECTION 148 O F THE ACT AFTER RECORDING THE REASONS AND TAKING NECESSARY APPROVALS TO THE ASSE SSEE. IN RESPONSE TO THE SAME THE ASSESSEE HAS NOT FILED ANY RETURN. THEREAFTER THE ASSESSING OFFICER ISSUED A NOTICE UNDER SECTION 142(1) DATED 07.11.2008 TO TH E ASSESSEE COMMUNICATING THE REASONS FOR TAKING ACTION UNDER SECTION 148/147 AN D CALLED FOR MANY DETAILS. IN THE SAID NOTICE THE ASSESSING OFFICER INFORMED THE ASS ESSEE THE REASONS FOR INITIATING PROCEEDINGS UNDER SECTION 147/148 OF THE ACT INFO RMING THAT HE HAS RECEIVED SOME INFORMATION FROM CENTRAL EXCISE DEPARTMENT NE W DELHI WHICH REVEALS THAT A SEARCH WAS CONDUCTED BY CENTRAL EXCISE DEPARTMENT ON 20.10.2002 IN THE BUSINESS PREMISES OF THE ASSESSEE M/S. AMAR JYOTI P ACKERS. DURING THE COURSE OF SEARCH VARIOUS INCRIMINATING DOCUMENTS WERE FOUND. INVENTORY OF STOCK WAS ALSO MADE. AFTER CONSIDERING THE MATERIAL FOUND DURING THE COURSE OF SEARCH AND OTHER FACTS OF THE CASE THE COMMISSIONER OF CEN TRAL EXCISE DELHI-I PASSED ORDER DATED 28.10.2005 IN THE ASSESSEES CASE AN D RAISED DEMAND OF ITA NOS.371 372 & 373/AGR/2010 A.YS. 2001-02 2002-03 & 2003-04 4 EXCISE DUTY OF ` 33 20 03 239/- FOR MANUFACTURED AND CLANDESTINELY R EMOVED FINISHED EXCISABLE GOODS WITHOUT PAYMENT OF CENTRAL EXCISE DUTY FOR THE PERIOD 01.04.2000 TO 30.06.2002. THE ASSESSING OFFICER AL SO INFORMED THE DETAILS OF THE SAME TO THE ASSESSEE IN THE REASONS REFERRED BY HIM . THE ASSESSING OFFICER IS OF THE OPINION THAT THE ASSESSEE HAS MANUFACTURED FINI SHED GOODS TO THE TUNE OF ` 61 91 80 698/- OUTSIDE THE BOOKS FOR THE PERIOD 01. 04.2000 TO 30.06.2002 WHICH ARE CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR T HE ASSESSMENT YEAR UNDER CONSIDERATION I.E. 2003-04 BY REASON OF THE FAILUR E ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESS ARY FOR HIS ASSESSMENT FOR THE ASSESSMENT YEAR 2003-04. ACCORDING TO THE ASSESSIN G OFFICER THESE FACTS WARRANT ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT TO ASS ESS/REASSESS THE ESCAPED INCOME CHARGEABLE TO TAX FOR THE ASSESSMENT YEAR 2003-04. ON THIS BASIS THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 148 OF THE ACT FOR ASSESSMENT YEAR 2003-04 REQUIRING THE ASSESSEE TO FILE HIS RETURN OF INCOME WITHIN 30 DAYS OF THE RECEIPT OF NOTICE. THE ASSESSING OFFICER ALSO INFORMED THE AS SESSEE TO FILE REQUIRED INFORMATION AND DETAILS SO AS TO ENABLE HIM TO COMP LETE ASSESSEES ASSESSMENT FOR THE ASSESSMENT YEARS IN DISPUTE. THE ASSESSING OFF ICER HAS MENTIONED ALL THE REQUIRED INFORMATION AND DETAILS AT PAGE NOS.2 TO 4 PARA NOS. 1 TO 17 AND FIXED THE CASE OF THE ASSESSEE FOR 20.11.2008 BUT NEITHER THE ASSESSEE NOR HIS LD. AUTHORISED REPRESENTATIVE APPEARED OR FILED ANY APPLICATION FO R ADJOURNMENT. THEREAFTER THE ITA NOS.371 372 & 373/AGR/2010 A.YS. 2001-02 2002-03 & 2003-04 5 ASSESSING OFFICER ISSUED ANOTHER NOTICE ON 02.12.20 08 TO BOTH THE KNOWN ADDRESSES OF THE ASSESSEE MENTIONED AT PAGE NO.4. THE ASSESS EE DID NOT APPEAR IN RESPONSE TO THE SAID NOTICE DATED 02.12.2008. BUT AGAIN THE AS SESSING OFFICER DEPUTED HIS INSPECTOR TO EFFECT THE SERVICE OF NOTICE ON THE AS SESSEE AND THE INCOME TAX INSPECTOR AFTER ENQUIRY INFORMED THAT THE ASSESSE E IS NOT RESIDING AT THE AVAILABLE ADDRESSES AND NO WHEREABOUTS OF THE ASSESSEE COULD BE ASCERTAINED. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT ON THE BASIS OF M ATERIAL AVAILABLE ON RECORD BY HOLDING THAT NO EXPLANATION HAS BEEN FURNISHED BY T HE ASSESSEE WITH REGARD TO THE UNDISCLOSED SALES AS RECORDED IN THE REASONS NOR AN Y OTHER INFORMATION IS AVAILABLE TO DISBELIEVE SUCH SALES BUT IT WOULD BE REASONABLE TO WORK OUT THE SALES OF THE ASSESSEE FOR THE RELEVANT YEAR ON PROPORTIONATE BAS IS AND HE WORKED OUT THE SALE FOR THE PERIOD 01.04.2000 TO 30.06.2002 I.E. 27 MONTHS AMOUNTING TO ` 61 91 80 698/- AND THE SALE FOR THE YEAR ON PROPORTIONATE BASIS CO MES TO ` 27 51 91 421/-. AS REGARDS TO WORKING OF NET PROFIT OF SUCH SALES THE ASSESSING OFFICER WORKED OUT OF NET PROFIT ON SALES BY APPLICATION OF NET PROFIT RA TE DECLARED BY THE ASSESSEE IN THE RELEVANT YEARS I.E. 1% ON THE TURNOVER FROM UNDISCL OSED SALES WHICH COMES TO ` 27 51 914/- AND THE ASSESSING OFFICER ADDED THE SAM E TO THE INCOME OF THE ASSESSEE AS PROFIT DERIVED ON UNDISCLOSED SALES BY COMPLETING THE ASSESSMENT ORDER UNDER SECTION 147 READ WITH SECTION 144 OF THE ACT ON 15.12.2008. AGGRIEVED BY THE SAME THE ASSESSEE FILED APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO ITA NOS.371 372 & 373/AGR/2010 A.YS. 2001-02 2002-03 & 2003-04 6 VIDE THE IMPUGNED ORDER DATED 01.06.2010 ALLOWED TH E APPEAL OF THE ASSESSEE AND QUASHED THE ASSESSMENT IN DISPUTE BY HOLDING THAT T HE ASSESSING OFFICER HAS NOT FULFILLED THE CONDITION LAID DOWN UNDER SECTION 282 OF THE ACT FOR EFFECTING SERVICE OF NOTICE AND IN THE PRESENT CASE NOTICE UNDER SECT ION 148 OF THE ACT HAS NEITHER BEEN SERVED ON THE ASSESSEE NOR ON ANY OTHER PERSON . THEREFORE THE LD. FIRST APPELLATE AUTHORITY HAS QUASHED THE ASSESSMENT ORDE R DECLARING THE SAME AS VOID AB-INITIO AND WITHOUT JURISDICTION. 5. AS REGARDS TO THE ADDITIONS MADE BY THE ASSESSIN G OFFICER THE LD. FIRST APPELLATE AUTHORITY HAS HELD THAT WHEN REASSESSMENT PROCEEDINGS HAS BEEN DECLARED VOID AB-INITIO AND WITHOUT JURISDICTION T HERE IS NO NEED TO DECIDE OTHER GROUNDS TAKEN ON MERIT AND HE ALLOWED THE APPEAL FI LED BY THE ASSESSEE BY PASSING THE IMPUGNED CONSOLIDATED ORDER FOR THE ASSESSMENT YEARS 2001-02 TO 2003-04 ON 01.06.2010. 6. NOW THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORD ERS FILED THE PRESENT APPEALS. 7. AT THE TIME OF HEARING THE LD. DEPARTMENTAL REP RESENTATIVE STATED THAT THE LD. FIRST APPELLATE AUTHORITY HAS PASSED THE IMPUGN ED ORDERS WITHOUT THOROUGHLY ITA NOS.371 372 & 373/AGR/2010 A.YS. 2001-02 2002-03 & 2003-04 7 GOING THROUGH THE FACTS AS WELL AS THE ASSESSMENT R ECORDS OF THE ASSESSMENT YEARS IN DISPUTE. HE FURTHER STATED THAT THE LD. FIRST A PPELLATE AUTHORITY HAS NOT APPRECIATED THAT ONLY THE NOTICES ISSUED UNDER SECT ION 148/143(2) OF THE ACT WERE NOT RECEIVED BUT THE ASSESSMENT ORDERS SENT AT THE SAME ADDRESS WERE RECEIVED BY THE ASSESSEE WHICH CLEARLY SHOWS THE CONDUCT OF NON CO-OPERATION OF THE ASSESSEE BEFORE THE ASSESSING OFFICER. 8. LD. DEPARTMENTAL REPRESENTATIVE ALSO PRODUCED TH E ORIGINAL ASSESSMENT RECORDS BEFORE US IN COMPLIANCE OF THE DIRECTION GI VEN BY THIS BENCH. THE PRESENT ASSESSING OFFICER SHRI K.D. BHATT ASSISTANT COMMIS SIONER OF INCOME TAX CENTRAL CIRCLE AGRA VIDE HIS LETTER DATED 31.10.20 11 FOR THE ASSESSMENT YEAR 2003-04 HAS SUBMITTED THAT AS PER RECORD THE NOTICE UNDER SECTION 148 OF THE ACT WAS SENT TO THE ASSESSEE BY SANJAY PLACE AGRA POST OFFICE THROUGH SPEED POST LETTER NO.EE910494968IN DATED 28.06.2007 WHICH HAS BEEN RETURNED BACK UNSERVED AS MENTIONED BY THE THEN ASSESSING OFFICER BUT THE ENVELOPE HAVING NOTICE SO RETURNED IS NOT READILY TRACEABLE. FURTH ER AS PER RECORD THE NOTICE WAS DISPATCHED BY SPEED POST VIDE DISPATCH REGISTER NO. 186 DATED 28.06.2007. AS REGARDS ASSESSMENT YEAR 2002-03 HE SUBMITTED THAT AS PER RECORD THE NOTICE UNDER SECTION 148 WAS SENT TO THE ASSESSEE BY SANJAY PLAC E AGRA POST OFFICE THROUGH ITA NOS.371 372 & 373/AGR/2010 A.YS. 2001-02 2002-03 & 2003-04 8 SPEED POST LETTER NO.EE910494968IN DATED 28.06.2007 WHICH HAS BEEN RETURNED BACK UNSERVED AS MENTIONED BY THE THEN ASSESSING OF FICER BUT THE ENVELOP HAVING NOTICE SO RETURNED IS NOT READILY TRACEABLE. FURTH ER AS PER RECORD THE NOTICE WAS DISPATCHED BY SPEED POST VIDE DISPATCH REGISTER NO. 185 DATED 28.06.2007. IN THE LETTER DATED 31.10.2011 HE HAS ALSO SUBMITTED THAT AS REGARDS TO ASSESSMENT YEAR 2001-02 A NOTICE UNDER SECTION 148 WAS SENT TO THE ASSESSEE BY POST WHICH HAS BEEN RETURNED BACK UNSERVED AS MENTIONED BY THE THE N ASSESSING OFFICER BUT THE ENVELOP HAVING NOTICE SO RETURNED IS NOT READILY TR ACEABLE. FURTHER AS PER RECORD REGARDING DESPACH BY SPEED POST OR REGISTERED POST HE STATED THAT THE NOTICE HAS BEEN SENT TO THE ASSESSEE BY POST BUT IT IS LEFT FR OM ENTERING IN THE DISPATCH REGISTER. TO SUPPORT THIS CONTENTION THE LD. DEPARTMENTAL RE PRESENTATIVE PRODUCED THE ORIGINAL RECORD OF ALL THE ASSESSMENT YEARS IN DISP UTE AND HE REQUESTED THAT THE IMPUGNED ORDERS PASSED BY THE LD. FIRST APPELLATE A UTHORITY MAY BE CANCELLED AND THE ASSESSMENT ORDERS MAY BE RESTORED BY ACCEPTING THE APPEALS FILED BY THE REVENUE. HE FURTHER SUBMITTED THAT THE LD. FIRST A PPELLATE AUTHORITY HAS NOT DECIDED THE ADDITION ON MERIT AND HE MAY BE DIRECTE D TO DECIDE THE SAME ON MERIT UNDER THE LAW AFTER GIVING OPPORTUNITY TO THE PARTI ES. 9. ON THE CONTRARY THE LD. COUNSEL FOR THE ASSESSE E RELIED UPON THE ORDERS PASSED BY THE LD. FIRST APPELLATE AUTHORITY. HE AL SO FILED ONE SMALL PAPER BOOK ITA NOS.371 372 & 373/AGR/2010 A.YS. 2001-02 2002-03 & 2003-04 9 CONTAINING PAGE NOS.1 TO 8 IN WHICH HE HAS ATTACHED COPY OF WRITTEN SUBMISSION DATED 08.03.2010 FILED BEFORE THE CIT(A) COPY OF R EMAND REPORT DATED 22.03.2010 ISSUED BY THE ASSESSING OFFICER AND COPY OF REJOINDER DATED 25.03.2010 FILED IN RESPONSE TO THE REMAND REPORT I SSUED BY THE ASSESSING OFFICER. HE HAS ALSO FILED COPY OF ORDER DECIDED IN THE CASE OF DY. COMMISSIONER OF INCOME TAX VS. K.G. SINGHANIA REPORTED IN (2009) 126 TTJ ( ASR) 373 IN WHICH THE UNDERSIGNED IS THE AUTHOR OF THE SAID CASE. THE LD . COUNSEL FOR THE ASSESSEE STATED THAT HIS WRITTEN SUBMISSION FILED BEFORE THE LD. FI RST APPELLATE AUTHORITY MAY BE TREATED AS ARGUMENT IN THESE CASES AND DECIDE THE I SSUE IN DISPUTE. ACCORDINGLY HE REQUESTED THAT THE APPEALS FILED BY THE REVENUE MAY BE DISMISSED. 10. WE HAVE HEAD BOTH THE PARTIES AND PERUSED THE O RDERS PASSED BY THE REVENUE AUTHORITIES ESPECIALLY THE ASSESSMENT RECORDS PRODU CED BY THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE ASSESSMENT YEARS IN DISPUTE. WE HAVE ALREADY POINTED OUT THAT THE ISSUES IN THESE THREE APPEALS ARE IDENTICA L. FACTS AND CIRCUMSTANCES OF ALL THE CASES ARE ALSO SIMILAR EXCEPT DIFFERENCE OF AMO UNTS IN DISPUTE. THEREFORE WE HAVE REPRODUCED THE GROUNDS OF APPEAL RAISED BY THE REVENUE ONLY IN ONE APPEAL AT PARAGRAPH NO.3 ABOVE AND THE LD. FIRST APPELLATE AU THORITY HAS ALSO PASSED A COMBINED IMPUGNED ORDER DATED 01.06.2010 FOR ALL TH E ASSESSMENT YEARS IN ITA NOS.371 372 & 373/AGR/2010 A.YS. 2001-02 2002-03 & 2003-04 10 DISPUTE. THEREFORE WE ARE ALSO DECIDING THE ISSUE IN DISPUTE BY PASSING A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 11. IT IS A MATTER ON RECORD THAT THE ASSESSING OFF ICER REOPENED THE ASSESSMENT OF THE ASSESSEE BY ISSUING THE NOTICE UNDER SECTION 14 8 OF THE ACT DATED 25.07.2007 25.06.2007 AND 25.06/2007 FOR THE ASSESSMENT YEARS 2001-02 2002-03 AND 2003- 04 RESPECTIVELY. THE ASSESSING OFFICER ALSO RECORD ED THE REASONS BEFORE THE ISSUING THE SAID NOTICES UNDER SECTION 148 OF THE A CT. THE REASONS RECORDED BY THE ASSESSING OFFICER ARE BASED UPON THE INCRIMINATING DOCUMENTS FOUND DURING THE SEARCH CONDUCTED BY THE CENTRAL EXCISE DEPARTMENT O N 20.10.2002 IN THE BUSINESS PREMISES OF THE ASSESSEE M/S AMAR JYOTI PACKERS. I NVENTORY OF STOCK WAS ALSO MADE BY THE SEARCH PARTY OF CENTRAL EXCISE DEPARTME NT. AFTER EXAMINING THE SAME THE COMMISSIONER OF CENTRAL EXCISE DELHI-I P ASSED AN ORDER DATED 28.10.2005 AND RAISED DEMANDS OF EXCISE DUTY AS MOT IONED IN THE RESPECTIVE ASSESSMENT ORDERS FOR MANUFACTURED AND CLANDESTINEL Y REMOVED FINISHED EXCISABLE GOODS WITHOUT PAYMENT OF CENTRAL EXCISE DUTY FOR TH E PERIOD 01.04.2000 TO 30.06.2002. THE ASSESSING OFFICER HAS ALSO REASON TO BELIEVE THAT ON THE BASIS OF THE SAID INFORMATION THAT THE ASSESSEE HAS MANUFACT URED FINISHED GOODS OUTSIDE THE BOOKS FOR THE SAID PERIOD AND THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR THE ASSESSMENT YEARS IN DISPUTE BY REASON OF TH E FAILURE ON THE PART OF THE ITA NOS.371 372 & 373/AGR/2010 A.YS. 2001-02 2002-03 & 2003-04 11 ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL F ACTS NECESSARY FOR HIS ASSESSMENT FOR THE ASSESSMENT YEARS IN DISPUTE. HE ISSUED NOT ICES UNDER SECTION 148 OF THE ACT FOR THE ASSESSMENT YEARS IN DISPUTE REQUIRING THE A SSESSEE TO FILE THE RETURN OF INCOME WITHIN 30 DAYS OF THE RECEIPT OF THE NOTICE. THE ASSESSING OFFICER HAS ALSO ISSUED NOTICE UNDER SECTION 142(1) FOR THE ASSESSME NT YEARS IN DISPUTE REQUIRING THE ASSESSEE TO FURNISH SOME INFORMATION AND DETAIL S WHICH HE HAS MENTIONED IN THE ASSESSMENT ORDER AT PAGES 2 TO 4 AND FIXED THE CASE S OF THE ASSESSEE FOR HEARING ON 20.11.2008. IN RESPONSE TO THE SAME NEITHER THE A SSESSEE NOR HIS LD. AUTHORISED REPRESENTATIVE APPEARED NOR FILED ANY APPLICATION F OR ADJOURNMENT. THEREAFTER ANOTHER NOTICE WAS ALSO SENT TO THE ASSESSEE FIXING THE DATE FOR HEARING ON 02.12.2008 ON THE TWO ADDRESSES AVAILABLE WITH HIM THAT ARE AS UNDER :- SHRI MAHESH GAUTAM PROP. M/S AMAR JYOTI PACKERS VILLAGE AND POST VEHRA VANDA KHURD TEHSIL KHANDAAR SWAI MADHOPUR (RAJASTHAN) AND SHRI MAHESH GAUTAM PROP. M/S AMAR JYOTI PACKERS 8-A COMMISSIONER LANE CIVIL LINES DELHI. 12. AS PER RECORD THE ASSESSING OFFICER ISSUED NOT ICES DATED 25.06.2007 UNDER SECTION 148 AS WELL AS SECTION 142(1) OF THE ACT TO THE ASSESSEE ON THE ADDRESS AVAILABLE WITH HIM I.E. SHRI MAHESH GAUTAM PROP. M /S AMAR JYOTI PACKERS VILLAGE AND POST VEHRA VANDA KHURD TEHSIL KHANDA AR DISTT. SWAI MADHOPUR ITA NOS.371 372 & 373/AGR/2010 A.YS. 2001-02 2002-03 & 2003-04 12 (RAJASTHAN) BY SANJAY PLACE AGRA POST OFFICE THROU GH SPEED POST LETTER NO.EE910494968IN DATED 28.06.2007 AND THE SAME HAS BEEN DESPATCHED BY THE OFFICE OF INCOME TAX VIDE DESPATCH REGISTER NOS.185 & 186 DATED 28.06.2007 FOR ASSESSMENT YEARS 2002-03 & 2003-04 RESPECTIVELY. H OWEVER FOR THE ASSESSMENT YEAR 2001-02 THE NOTICE DATED 25.07.2007 UNDER SECT ION 148 WAS SENT TO THE ASSESSEE BY POST BUT IT HAS BEEN LEFT FROM ENTERING IN THE DISPATCH REGISTER AS PER THE REPORT OF SHRI K.D. BHATT ASSISTANT COMMISSIONER O F INCOME TAX CENTRAL CIRCLE AGRA IN THE LETTER DATED 31.10.2011 INFORMING THE L D. DEPARTMENTAL REPRESENTATIVE I.T.A.T. AGRA. 13. LD. DEPARTMENTAL REPRESENTATIVE HAS ALSO INFOR MED IN WRITING TO THE BENCH THAT FOR THE ASSESSMENT YEAR 2003-04 NOTICE UNDER S ECTION 148 WAS SENT BY SPEED POST AND THE SAME WAS RECEIVED BACK UNSERVED AS MEN TIONED BY THE THEN ASSESSING OFFICER IN THE ASSESSMENT ORDER BUT THE SAME ENVELO PE HAVING NOTICE SO RETURNED IS NOT READILY TRACEABLE. FOR THE ASSESSMENT YEAR 200 2-03 ALSO THE FACTS ARE SAME AS IN THE ASSESSMENT YEAR 2003-04. HE ALSO INFORMED T HAT FOR ASSESSMENT YEAR 2001-02 THE NOTICE UNDER SECTION 148 WAS SENT BY PO ST WHICH HAS BEEN RECEIVED BACK UNSERVED AS MENTIONED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER BUT THE SAME IS LEFT FROM ENTERING IN THE DESPACH REGIS TER. TO PROVE THIS VERSION THE ITA NOS.371 372 & 373/AGR/2010 A.YS. 2001-02 2002-03 & 2003-04 13 LD. DEPARTMENTAL REPRESENTATIVE DREW OUR ATTENTION TOWARDS THE ASSESSMENT RECORDS. 14. WE HAVE PERUSED THE ORIGINAL ASSESSMENT RECORDS PRODUCED BY THE LD. DEPARTMENTAL REPRESENTATIVE AND HAVE THOROUGHLY GON E THROUGH THE FACTS NARRATED BY THE ASSESSING OFFICER AS WELL AS THE LD. FIRST A PPELLATE AUTHORITY. WE FIND THAT IN THE ASSESSMENT YEARS 2002-03 & 2003-04 THE ASSES SING OFFICER NARRATED THE FACTS CONTRARY TO THE ORIGINAL ASSESSMENT RECORDS A VAILABLE WITH US. SIMILARLY THE LD. FIRST APPELLATE AUTHORITY HAS ALSO COPIED THE S AME WITHOUT PERUSING THE ORIGINAL ASSESSMENT RECORDS FOR THE ASSESSMENT YEARS 2002-03 & 2003-04. AS PER THE RECORDS THE ASSESSING OFFICER HAS ISSUED NOTICES T O THE ASSESSEE UNDER SECTION 148 OF THE ACT DATED 25.06.2007 FOR THE ASSESSMENT YEAR S 2002-03 & 2003-04 BY SPEED POST FROM SANJAY PLACE AGRA POST OFFICE VIDE NO.EE910494968IN DATED 28.06.2007 WHICH HAS BEEN ENTERED IN THE DESPACH RE GISTER VIDE NOS.185 & 186 DATED 28.06.2007 RESPECTIVELY ON THE ADDRESS AVAILA BLE WITH THE ASSESSING OFFICER I.E. SHRI MAHESH GAUTAM PROP. M/S AMAR JYOTI PACKE RS VILLAGE AND POST VEHRA VANDA KHURD TEHSIL KHANDAAR DISTT. SWAI MADHOPU R (RAJASTHAN) BUT WE HAVE NOT FOUND THAT THE SAID NOTICES WERE RECEIVED BACK UNSERVED. ACCORDING TO THE RECORDS THERE IS NO EVIDENCE SUPPORTING THIS FACTS NARRATED BY THE REVENUE AUTHORITIES. IT MEANS THE ASSESSING OFFICER AS WEL L AS THE LD. FIRST APPELLATE ITA NOS.371 372 & 373/AGR/2010 A.YS. 2001-02 2002-03 & 2003-04 14 AUTHORITY HAS NARRATED THE FACTS CONTRARY TO THE OR IGINAL ASSESSMENT RECORDS. EVEN NOT A SINGLE EVIDENCE IS AVAILABLE ON RECORD REGARD ING RETURNING OF THE SAID NOTICES OR REFUSAL BY THE ASSESSEE TO RECEIVE THE SAID NOTI CES ISSUED BY THE ASSESSING OFFICER UNDER SECTION 148 OF THE ACT DATED 25.06.20 07. WE FIND THAT THE ASSESSING OFFICER HAS SENT THESE NOTICES TO THE ASSESSEE ON T HE PROPER ADDRESS BY SPEED POST AS PER THE DETAILS MENTIONED ABOVE. ACCORDING TO T HE ILLUSTRATION (F) OF SECTION 114 OF INDIAN EVIDENCE ACT READS THUS: THE COURT MAY PRESUME THAT COMMON COURSE OF BUSINE SS HAS BEEN FOLLOWED IN PARTICULAR CASES 15. ACCORDING TO THE RECORD IT IS ADMITTED FACT TH AT THE NOTICES UNDER SECTION 148 OF THE ACT DATED 25.06.2007 HAS BEEN ISSUED TO THE ASSESSEE BY SPEED POST WHICH HAVE NOT BEEN RETURNED BACK UNSERVED TILL THE COMPL ETION OF ASSESSMENT IN DISPUTE I.E. 15.12.2008 OR EVEN TILL THE PASSING OF THE IMP UGNED ORDERS BY THE LD. FIRST APPELLATE AUTHORITY. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE WE ARE OF THE CONSIDERED OPINION THAT WHEN TH E NOTICES IN DISPUTE HAVE BEEN ISSUED TO THE ASSESSEE ON A PROPER ADDRESS BY SPEED POST AND NOT RETURNED BACK UNSERVED IS ADMITTED TO BE VALID SERVICE IN THE EYE OF LAW. THIS VIEW IS SUPPORTED BY THE RATIO OF DECISION RENDERED BY THE HONBLE CA LCUTTA HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. MAL CHAND SURANA (19 55) 28 ITR 684 (CAL). HONBLE CALCUTTA HIGH COURT HAS DISCUSSED IN DETAIL ABOUT THE VALID SERVICE AS WELL ITA NOS.371 372 & 373/AGR/2010 A.YS. 2001-02 2002-03 & 2003-04 15 AS ABOUT THE DEEMED SERVICE. THEREFORE WE ARE OF THE VIEW THAT THE LD. FIRST APPELLATE AUTHORITY HAS WRONGLY QUASHED THE ASSESSM ENT IN DISPUTE AND DECLARED THE SAME VOID AB-INITIO AND WITHOUT JURISDICTION. 16. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE CASE DISCUSSED ABOVE FOR THE ASSESSMENT YEARS 2002-03 & 2003-04 WE ARE OF T HE CONSIDERED OPINION THAT THE IMPUGNED ORDERS ARE NOT SUSTAINABLE IN THE EYE OF LAW. THEREFORE WE CANCEL THE SAME BY ACCEPTING THE APPEALS FILED BY THE REVE NUE VIDE ITA NOS.372 & 373/AGR/2010 FOR THE ASSESSMENT YEARS 2002-03 & 200 3-04 WITH DIRECTION TO THE LD. FIRST APPELLATE AUTHORITY TO DECIDE THE ADDITIO NS IN DISPUTE ON MERIT UNDER LAW AFTER GIVING OPPORTUNITY TO THE PARTIES. 17. AS REGARDS TO THE ITA NO.371/AGR/2010 FOR THE A SSESSMENT YEAR 2001-02 AFTER PERUSING THE ORIGINAL ASSESSMENT RECORDS PROD UCED BY THE LD. DEPARTMENTAL REPRESENTATIVE WE FIND THAT THE NOTICE UNDER SECTI ON 148 OF THE ACT DATED 25.07.2007 WAS ISSUED TO THE ASSESSEE ONLY BY POST AS PER AVERMENT OF THE LD. DEPARTMENTAL REPRESENTATIVE. BUT WE FIND THAT THE RE IS NO EVIDENCE SUPPORTING THE CONTENTION OF THE LD. DEPARTMENTAL REPRESENTATIVE. THE LD. DEPARTMENTAL REPRESENTATIVE HIMSELF INFORMED THIS BENCH IN WRITI NG ON THE BASIS OF INFORMATION LETTER DATED 31.10.2011 WRITTEN BY SHRI K.D. BHATT ASSISTANT COMMISSIONER OF INCOME TAX AGRA THAT AS PER RECORD NOTICE UNDER SECTION 148 WAS SENT TO THE ASSESSEE BY POST WHICH HAS BEEN RETURNED BACK UNSER VED AS MENTIONED BY THE THEN ITA NOS.371 372 & 373/AGR/2010 A.YS. 2001-02 2002-03 & 2003-04 16 ASSESSING OFFICER BUT THE ENVELOPE HAVING NOTICE SO RETURNED IS NOT READILY TRACEABLE. FURTHER AS PER RECORD REGARDING DESPAC H BY SPEED POST OR REGISTERED POST HE INFORMED THAT NOTICE HAS BEEN SENT TO THE ASSESSEE BY POST BUT IT IS LEFT FROM ENTERING IN THE DESPACH REGISTER. WE ARE OF THE VI EW THAT THE STAND TAKEN BY THE LD. DEPARTMENTAL REPRESENTATIVE IS NOT TENABLE IN THE E YE OF LAW WHICH IS WITHOUT ANY SUPPORTING EVIDENCE. THEREFORE WE HOLD THAT THE A SSESSING OFFICER HAD NOT ISSUED NOTICE UNDER SECTION 148 OF THE ACT DATED 25.07.200 6 TO THE ASSESSEE AND COMPLETED THE ASSESSMENT FOR THE ASSESSMENT YEAR 2001-02 WITH OUT VALIDLY SERVING NOTICE UNDER SECTION 148 OF THE ACT UPON THE ASSESSEE. WE UPHOLD THE IMPUGNED ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY FOR THE ASSESSMENT YEAR 2001-02 WHEREIN CIT(A) HAS QUASHED THE ASSESSMENT ORDER AND DECLARED THE SAME VOID AB- INITIO AND WITHOUT JURISDICTION. 18. IN THE RESULT ITA NO.371/AGR/2010 OF THE REVEN UE FOR THE ASSESSMENT YEAR 2001-02 IS DISMISSED AND ITA NOS.372 & 373/AGR/2010 OF THE REVENUE FOR THE ASSESSMENT YEARS 2002-03 & 2003-04 RESPECTIVELY ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 16.11.2011) SD/- SD/- (B.C. MEENA) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 16 TH NOVEMBER 2011 PBN/* ITA NOS.371 372 & 373/AGR/2010 A.YS. 2001-02 2002-03 & 2003-04 17 COPY OF THE ORDER FORWARDED TO: APPELLANT/RESPONDENT/CIT CONCERNED/CIT(APPEALS) CO NCERNED/D.R. ITAT AGRA BENCH AGRA/GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE T RIBUNAL AGRA TRUE COPY