Commissioner Of Income Tax, Faridabad v. M/S Cebon India Limited

I.T.A. No. 85 of 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH I.T.A. No. 85 of 2009 DATE OF DECISION: 7.7.2009 Commissioner of Income Tax, Faridabad ..........Appellant Versus M/s Cebon India Limited, C/o Rakesh..........RespondentRaj & Associates, Chartered Accountants CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:-Mr. Rajesh Katoch, Advocatefor the appellant. **** ADARSH KUMAR GOEL, J. (Oral) 1.The revenue has preferred this appeal under Section 260A ofthe Income Tax Act, 1961 (for short, “the Act”) against the order dated27.6.2008 passed by the Income Tax Appellate Tribunal, Delhi Bench “I”,New Delhi in ITA No. 4531/DEL/2005 for the assessment year 1996-97,proposing to raise following substantial questions of law:- 1. “Whether on the facts and in the circumstances of thecase, the Ld. ITAT is right in law in holding that therewas no valid service of notice u/s 143(2) before the duedate even though the Assessing Officer had issued thenotice u/s 143(2) on 11/13.11.1997 vide dispatch No.2640 and subsequently, the assessee participated in theproceedings?” 2. “Without prejudice to above, whether the Tribunal isright in not treating the defect if any in service of noticeu/s 143 (2) as an irregularity curable u/s 292 BB of the Income Tax Act, 1961?” 2.The assessee filed return for the assessment year in questionon 30.11.1996, which was processed under Section 143 (1) (a) on30.5.1997. Thereafter. assessment was framed under Section 144 of theAct, which was affirmed in appeal. The Tribunal, however, remanded thematter to CIT (A). The CIT (A), in the second round, allowed the appeal onthe ground that there was no evidence to show that notice under Section143 (2) of the Act had been served on the assessee before 30.11.1997 i.e.within one year of the filing of the return. It was accordingly held by theCIT (A) that the assessment was void. 3.The finding of the CIT (A) has been affirmed by the Tribunal. 4.Learned counsel for the revenue submits that a notice hasbeen duly dispatched to the assessee on 13.11.1997 and the irregularity ordefect in issuing notice was curable under Section 292BB of the Act. 5.We find that concurrent finding has been recorded by the CIT(A) as well as the Tribunal on the question of date of service of notice.Notice was not served within the stipulated time. Mere giving of dispatchnumber will not render the said finding to be perverse. In absence of noticebeing served, the Assessing Officer had no jurisdiction to makeassessment. Absence of notice cannot be held to be curable underSection 292 BB of the Act. 6.In view of above, no substantial question of law arises.7.The appeal is dismissed. (ADARSH KUMAR GOEL) JUDGE July 07, 2009pooja (DAYA CHAUDHARY)JUDGE Note:-Whether this case is to be referred to the Reporter .......Yes/No