Income-tax Appeal No.417 v. Sh. K.C.Tapedar

CORAM: HON'BLE MR.JUSTICE ADARSH KUMAR GOEL HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Ms. Urvashi Dhugga, Senior Standing Counsel for the appellant. None for the respondent. **** AJAY KUMAR MITTAL, J.

As per office report service is complete. No one appears on behalf of the respondent to oppose the prayer made in the appeal.

This appeal has been preferred by the revenue under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) against order dated 5.8.2005 passed by the Income Tax Appellate Tribunal, Delhi Bench 'E', Delhi (for short, “the Tribunal”) in ITA No.3503/DEL/2001, relating to the assessment year 1998-99.

The appeal was admitted on 20.7.2007 for determination of the following substantial questions of law by this Court:-

i) Whether on the facts and in the circumstances of the case, the assessment can be annulled on the ground that notice u/s 143(2) was not served upon the assessee personally but upon one of his subordinates? ii) Whether the defect in effecting service of notice u/s 143 (2) is not curable u/s 292-B of the Income Tax Act, 1961? Income-tax Appeal No.417 of 2006 -2- *** iii) Whether on the facts and in the circumstances of the case, the Hon'ble ITAT was right in law in confirming the order of the CIT(A) quashing the assessment order on the basis of service of notice u/s 143(2) of the Act on the person available at the office premises of the company in which the assessee was a Managing Director?

The facts as stated in the appeal necessary for adjudication for the present appeal may be noticed. The assessee declared an income of Rs.14,51,028/- in his return filed on 29.9.1998. The return was processed under Section 143(1)(a) of the Act on 31.5.1999. The case of the assessee was selected for scrutiny and notice under Section 143(2) of the Act was issued on 29.9.1999. The said notice was received by Sh. Sanjay Chaudhary on behalf of the assessee. The assessing officer completed the assessment under Section 143(3) of the Act at an income of Rs.21,27,100/- on 16.2.2001 after making certain additions. The assessee feeling aggrieved against the additions made by the Assessing Officer had filed an appeal before the Commissioner of Income-Tax (Appeals) (for short “the CIT(A)”) which was allowed on 1.6.2001 on a technical ground that the notice under Section 143(2) of the Act was served on Shri Sanjay Chaudhary on behalf of the assessee who was not authorised representative of the assessee. The appeal of the Revenue against the said order was dismissed by the Tribunal vide order dated 5.8.2005. Hence this appeal.

We have heard the learned counsel for the revenue and have perused the records.

Learned counsel for the Revenue submits that Shri Sanjay Chaudhary was duly authorised representative of the assessee and had been appearing on his behalf in the proceeding relating to the earlier years Income-tax Appeal No.417 of 2006 -3- *** as well. She drew the attention of this Court to the letter No.438 dated

31.5.2001 which was addressed by the representative of the assessee which reads as under:-

Sh.K.C.Tapedar, the assessee is residing at C-4/42, Safdarganj, Delhi but filing the return of income-tax and wealth-tax at Faridabad being the director of the company M/s Porritts & Spencer (A) Ltd., Faridabad. Return of income was filed on 29.09.1998. Notice u/s 143(2) was served through notice serve which was received by Sh. Sanjay Chaudhary on behalf of the assessee on dated 30.9.99. In response to this notice Mr. Sanjay Chaudhary attended the proceedings on dated 8.10.99. The records show in the earlier years also notices were received and proceedings were attended by the Sh. Sanjay Chaudhary, duly authorised by the assessee. Therefore, notice was served within time and was valid one. The CIT(A) may kindly decide the issue.

Learned counsel for the Revenue further submits that in view of Section 292-B of the Act such technical defect, if any, could not be fatal to the proceedings.

We have given our thoughtful consideration to the submissions of learned counsel for the revenue and find weight therein.

In the present case, admittedly the notice issued under Section 143(2) of the Act in the name of the assessee was served upon Sh. Sanjay Chaudhary on 30.9.99. The proceedings on 8.10.99 were attended by Sh. Sanjay Chaudhary on behalf of the assessee. It has been specifically stated in letter dated 31.5.2001 addressed by the representative of the assessee that Shri Sanjay Chaudhary was served on behalf of the assessee on 30.9.99 and had appeared on 8.10.99. On earlier occasions Income-tax Appeal No.417 of 2006 -4- *** and in earlier years, Sh. Sanjay Chaudhary had been representing the assessee before the Department. During the assessment proceedings, no objection regarding validity of the notice under Section 143(2) of the Act was raised. Nothing had been produced by the assessee to establish that Sh. Sanjay Chaudhary was no longer his authorised representative. Moreover, the provisions of Section 292B of the Act would protect the assessment order from being declared null and void for want of service in the present fact situation. The CIT(A) and the Tribunal were, thus, not justified in holding the assessment order to be vitiated.