Lovlesh Jain, New Delhi v. ACIT, New Delhi

MA 263/DEL/2010 | 2003-2004
Pronouncement Date: 11-03-2011 | Result: Partly Allowed

Appeal Details

RSA Number 26320124 RSA 2010
Assessee PAN AAHPS9311B
Bench Delhi
Appeal Number MA 263/DEL/2010
Duration Of Justice 9 month(s) 21 day(s)
Appellant Lovlesh Jain, New Delhi
Respondent ACIT, New Delhi
Appeal Type Miscellaneous Application
Pronouncement Date 11-03-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 11-03-2011
Assessment Year 2003-2004
Appeal Filed On 20-05-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH E EE E : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI C.L.SETHI JM AND SHRI SHAMIM YAHYA AM BEFORE SHRI C.L.SETHI JM AND SHRI SHAMIM YAHYA AM BEFORE SHRI C.L.SETHI JM AND SHRI SHAMIM YAHYA AM BEFORE SHRI C.L.SETHI JM AND SHRI SHAMIM YAHYA AM MISCELLANEOUS APPLICATION MISCELLANEOUS APPLICATION MISCELLANEOUS APPLICATION MISCELLANEOUS APPLICATION NO NONO NOS SS S. .. .263/DEL/2010 & 264/DEL/2010 263/DEL/2010 & 264/DEL/2010 263/DEL/2010 & 264/DEL/2010 263/DEL/2010 & 264/DEL/2010 (IN ITA NOS.4723/DEL/2009 & 4724/DEL/2009) (IN ITA NOS.4723/DEL/2009 & 4724/DEL/2009) (IN ITA NOS.4723/DEL/2009 & 4724/DEL/2009) (IN ITA NOS.4723/DEL/2009 & 4724/DEL/2009) ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEARS SS S : : : : 2003 2003 2003 2003- -- -04 & 2004 04 & 2004 04 & 2004 04 & 2004- -- -0 00 05 55 5 SHRI LOVLESH JAIN SHRI LOVLESH JAIN SHRI LOVLESH JAIN SHRI LOVLESH JAIN C CC C- -- -1/3 MODEL TOWN 1/3 MODEL TOWN 1/3 MODEL TOWN 1/3 MODEL TOWN NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 009. 110 009. 110 009. 110 009. PAN NO.AAHPS9311B. PAN NO.AAHPS9311B. PAN NO.AAHPS9311B. PAN NO.AAHPS9311B. VS. VS. VS. VS. ASSTT.COMMISSIONER OF INCOME TAX ASSTT.COMMISSIONER OF INCOME TAX ASSTT.COMMISSIONER OF INCOME TAX ASSTT.COMMISSIONER OF INCOME TAX CIRCLE CIRCLE CIRCLE CIRCLE- -- -20(1) 20(1) 20(1) 20(1) NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AJAY VOHRA ADVOCATE. RESPONDENT BY : SMT.ANUSHA KHURANA SR.DR. ORDER ORDER ORDER ORDER PER C.L.SETHI PER C.L.SETHI PER C.L.SETHI PER C.L.SETHI J J J JM : M : M : M : THESE TWO MISCELLANEOUS APPLICATIONS HAVE BEEN FIL ED BY THE ASSESSEE WITH REFERENCE TO TRIBUNALS CONSOLIDATED ORDER DATED 19.2.2010 PERTAINING TO THE AY 2003-04 & 2004-05. 2. IN THE MISCELLANEOUS APPLICATIONS THE ASSESSEE HAS STATED THAT WHILE SETTING ASIDE THE MATTER TO THE AO REGARDING THE MATTER AS TO WHETHER NOTICE ISSUED U/S 148 WAS DULY SERVED UPON THE ASSESSEE THE TRIBUNAL HAS INADVERTENTLY NOT STATED THE LEGAL CON SEQUENCES IN CASE THE AO HAS NOT BEEN ABLE TO ESTABLISH ACTUAL SERVIC E OF NOTICE ON THE ASSESSEE. 3. WE HAVE HEARD BOTH THE PARTIES AND HAVE CAREFULL Y PERUSED THE ORDERS OF AUTHORITIES BELOW. IN THIS CASE THE MAT TER ABOUT SERVICE OF NOTICE U/S 147 OF THE ACT HAS BEEN DECIDED BY US BY OBSERVING AND HOLDING AS UNDER:- 11. IN THESE TWO ASSESSMENT YEARS THE ASSESSMENT WAS COMPLETED U/S 143(3) READ WITH SECTION 47 OF THE AC T ON MA NOS.263 & 264/D/2010 2 30.12.2008. BEFORE THE A.O. THE ASSESSEE FILED HI S LETTER DATED 29.12.2008 DENYING THE SERVICES OF NOTICE ISS UED U/S 148 UPON HIM. THE AO HAS DRAWN PRESUMPTION U/S 27 OF THE GENERAL CLAUSES ACT ABOUT THE SERVICE OF NOTICE UPON THE ASSESSEE AS THE NOTICE SENT BY SPEED POST DID N OT RECEIVE BACK UNSERVED. THE AFFIDAVIT FILED BY THE ASSESSEE IS DATED 05.05.2009 WHICH MAKES IT CLEAR THAT THES E AFFIDAVITS OF THE ASSESSEE WERE NOT FILED BEFORE TH E A.O. AS THE ASSESSMENT WAS ALREADY COMPLETED BY THE A.O. ON 30.12.2008. THE COPIES OF THE AFFIDAVIT ARE PLACED AT PAGES 19 AND 18 OF THE PAPER BOOKS FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2003-04 AND 2004-05 RESPECTIVELY. IT IS THEREFORE CLEAR THAT THIS AFFIDAVIT WAS NOT FILED BEFORE THE AO. IT IS ALSO NOT THE CASE OF THE ASSESSEE THAT A FFIDAVIT WAS FILED BEFORE THE A.O. WHEN AFFIDAVIT WAS FILED BEFORE THE LD.CIT(A) THE LD.CIT(A) CALLED A REMAND REPORT FROM THE A.O. IN THE REMAND REPORT THE A.O. REITERATED THA T SINCE NOTICE SENT BY SPEED POST HAS NOT BEEN RETURNED UNS ERVED IT SHALL BE PRESUMED THAT THE NOTICE HAVE BEEN DULY SERVED UPON THE ASSESSEE. IN THE COURSE OF ASSESSMENT PROCEEDINGS THE OBJECTION IN WRITING WAS TAKEN BY THE ASSESSEE VIDE LETTER DATED 29.12.2008. THE ASSESSM ENT WAS GETTING TIME BARRED BY 30.12.2008. THEREFORE THERE WAS NO SUFFICIENT TIME AVAILABLE FOR THE A.O. TO MA KE ENQUIRY IN THE MATTER FROM THE POST OFFICE WHETHER THE NOTICE SENT BY SPEED POST ON 18.01.2008 HAS BEEN DU LY DELIVERED TO THE ASSESSEE AT THE ADDRESS GIVEN IN T HE LETTER. THE ASSESSEE HAS FILED AN AFFIDAVIT ALLEGING THAT T HE NOTICE DATED 18.01.2008 UNDER SECTION 148 OF THE ACT PURPO RTEDLY ISSUED BY THE A.O. BY SPEED POST WAS NEVER SERVED O N THE ASSESSEE. THEREFORE IN THESE CIRCUMSTANCES WE AR E OF THE CONSIDERED VIEW THAT A FURTHER ENQUIRY AND VERIFICA TION IS TO BE MADE IN THIS RESPECT. WE THEREFORE RESTORE TH IS ISSUE BACK TO THE FILE OF THE A.O. FOR HIS FRESH DECISION AND FOR MAKING NECESSARY ENQUIRY AND VERIFICATION IN THIS R EGARD. THE A.O. SHALL MAKE SUCH ENQUIRY AND VERIFICATION F ROM THE POSTAL AUTHORITY AS HE THINKS FIT AND PROPER. THE A.O. SHALL PROVIDE REASONABLE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE TO HAVE HIS SAY IN RESPECT OF ANY MATERIAL OR INFORMATION THAT MAY BE GATHERED BY THE A.O. FROM P OSTAL AUTHORITY. WE ORDER ACCORDINGLY. 4. ON PERUSAL OF OUR ORDER IT IS CLEAR THAT AO SHA LL MAKE A FURTHER ENQUIRY AND VERIFICATION AS TO WHETHER NOTICE U/S 1 48 SENT BY POST WAS DULY SERVED UPON THE ASSESSEE. WE HAVE ALSO STATED THAT AO SHALL MA NOS.263 & 264/D/2010 3 PROVIDE REASONABLE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE TO HAVE HIS SAY IN RESPECT OF ANY MATERIAL OR INFORMATION T HAT MAY BE GATHERED BY THE AO FROM THE POSTAL AUTHORITIES. IN CASE IT IS FOUND BY THE AO THAT NOTICE U/S 148 HAS NOT BEEN SERVED UPON THE AS SESSEE THE LEGAL CONSEQUENCES WILL AUTOMATICALLY FOLLOW AS SO SETTLE D BY VARIOUS COURTS FROM TIME TO TIME. WITH THIS OBSERVATION WE DISPO SE OF THESE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE. 5. IN THE RESULT THE MISCELLANEOUS APPLICATIONS FI LED BY THE ASSESSEE STAND DISPOSED OF AS ABOVE. DECISION PRONOUNCED IN THE OPEN COURT ON 11 TH MARCH 2011. SD/- SD/- (SHAMIM YAHYA (SHAMIM YAHYA (SHAMIM YAHYA (SHAMIM YAHYA) )) ) (C.L.SETHI (C.L.SETHI (C.L.SETHI (C.L.SETHI) )) ) ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATED : 11.03.2011. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT ASSISTANT REGISTRAR MA NOS.263 & 264/D/2010 4