Commissioner Of Income Tax, Udaipur v. Shri Bhuvnesh Maheshwari

-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T D.B. Income Tax Appeal No.85/2014 Commissioner of Income Tax, Udaipurv.Shri Bhuvnesh Maheshwari Date of Judgment :: 12[th] May, 2015 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHURHON'BLE MISS JUSTICE JAISHREE THAKUR Mr. K.K.Bissa, for the appellant. .... BY THE COURT: To question correctness of the judgment dated31.10.2013 passed by the Income Tax Appellate Tribunal,Jodhpur Bench, Jodhpur affirming the order passed by theCommissioner of Income Tax (Appeals), Udaipur dated5.3.2013 in appeal No.303/IT/UDR/2011-12, this appeal underSection 260-A of the Income Tax Act, 1961 (hereinafterreferred to as 'the Act of 1961') is before us. The factual matrix necessary to be noticed isthat the assessee filed a return of income for theassessment year 2009-10 on 26.3.2010 showing a taxableincome of Rs.6,03,140/-. The return filed was proceeded asper provisions of Section 143(1) of the Act of 1961 and theresultant refund was also issued. The case of the assessee was selected forscrutiny being an outcome of survey. The Assessing Officer on 23.9.2010 issued a notice under Section 143(2) of theAct of 1961 and as stated in the order of assessment thesame was served upon the assessee. The assessee, on theother hand, stated that the notice aforesaid was not servedupon him and at the first instance he came to know aboutinitiation of proceedings under Section 143(2) of the Actof 1961 under a notice dated 18.11.2011. The assesseeobjected the entire process being barred by limitation asper proviso to Section 143(2) of the Act of 1961, accordingto which such notice could have not been served on theassessee after expiry of six months from the end offinancial year in which return was furnished. The AssessingOfficer while negativating the stand taken by the assesseeheld that at the first instance the notice dated 23.9.2010was served upon the assessee on 24.9.2010 i.e. within aperiod of six months from the date of closing theassessment year. The Assessing Officer framed theassessment invoking provisions of Section 144 of the Act of1961 by observing that the assessee for the reasons bestknown to him did not comply with the terms of notice. Bymaking various additions the assessment was framed at theincome of Rs.42,38,457/-. The assessee being aggrieved by the order ofassessment preferred an appeal before the Commissioner ofIncome Tax (Appeals), Udaipur with assertion that the orderof assessment was without jurisdiction as the notice underSection 143(2) of the Act of 1961 was served after a lapseof a period of six months from the date of closure of theassessment year. Learned Commissioner of Income Tax(Appeals) after considering the submissions arrived at the conclusion that no notice under Section 143(2) was servedupon the assessee on or before 30.9.2010, therefore, theprocess under the provision aforesaid was impermissible. The revenue challenged the order passed by theCommissioner of Income Tax (Appeals) dated 5.3.2013 by wayof filing an appeal before learned Income Tax AppellateTribunal, Jodhpur Bench, Jodhpur but that came to bedismissed under the judgment impugned. Before us, the arguments advanced by learnedcounsel for the appellant are that - (1)the Commissioner of Income Tax (Appeals), as well aslearned Income Tax Appellate Tribunal failed to appreciatethat a notice prior to expiry of six months was served uponan employee of the assessee namely Bherulal, therefore, theservice is required to be treated sufficient; and (2)as per Section 292-BB of the Act of 1961 a presumptionshould have been drawn about service of statutory noticeupon the assessee as he participated in the assessmentproceedings. We do not find any merit in the argumentsadvanced. Before us, the arguments advanced by learnedcounsel for the appellant are that - (1)the Commissioner of Income Tax (Appeals), as well aslearned Income Tax Appellate Tribunal failed to appreciatethat a notice prior to expiry of six months was served uponan employee of the assessee namely Bherulal, therefore, theservice is required to be treated sufficient; and (2)as per Section 292-BB of the Act of 1961 a presumptionshould have been drawn about service of statutory noticeupon the assessee as he participated in the assessmentproceedings. We do not find any merit in the argumentsadvanced. So far as service upon Shri Bherulal said to bean employee of the assessee is concerned, it is pertinentto notice that by way of filing an affidavit Shri Bherulalstated on oath before the Commissioner of Income Tax (Appeals) that he was not in service with the assesseeafter 12.11.2008 and was not in touch with the assessee andnever visited business place after leaving the service. Healso stated that no notice from any governmentdepartment/agency in his name or in the name of assesseewas received by him. No counter to the statements made byShri Bherulal on oath was made by any officer of therevenue. In view of it, we are of considered opinion thatthe Commissioner of Income Tax as well as learned IncomeTax Appellate Tribunal rightly relied upon the statementsmade by Shri Bherulal. The other argument advanced by learned counselfor the appellant is also bereft of merit in view of thefact that the presumption as per Section 292-BB of the Actof 1961 could have been drawn only if the assessee did nothave raised objection about the service of notice beforecompletion of the assessment in question. In the instantmatter the assessee not only raised the objection but alsocontested the same before the Assessing Officer. In view of whatever stated above, we do not findany merit in this appeal, hence the same is dismissed inlimine. (JAISHREE THAKUR),J. (GOVIND MATHUR),J. kkm/ps.