Hari Ram Choudhary v. Income Tax Officer, Ward

HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJODHPUR D.B. Civil Writ Petition No. 12441/2012 Hari Ram Choudhary s/o Shri Anda Ram Choudhary, by casteChoudhary, aged about 52 years, resident of Near Sheetala MataTemple, Merta City, Distt. Nagaur. ----Petitioner Versus Income Tax Officer, Ward No.1, Nagaur ----Respondent For Petitioner(s) : Mr. Vikas Balia, Sr. Adv. assisted by Mr. Priyansh Arora For Respondent(s) : Mr. Sunil Bhandari HON'BLE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT Order 15/02/2023 The petitioner has filed this writ petition seeking quashmentof the order dated 13.08.2012 and subsequent notice dated06.11.2012 issued by the respondents as also proceedings drawnin pursuance of the notices. 2.Quint essential facts giving rise to the present writ petitionare that the petitioner submitted his income tax return underSection 139(1) of the Income Tax Act, 1961 (hereinafter referredto as 'the Act') for the assessment year 2010-2011 on05.10.2010. The petitioner thereafter received a notice dated03.08.2012 under Section 143(2) of the Act for personalappearance on 13.08.2012. According to the petitioner, the saidnotice was received by him only on 07.08.2012. In response tothe said notice, the petitioner submitted his objection on 13.08.2012 stating that the notice is beyond limitation providedunder the proviso to Section 143(2) of the Act, and therefore, theproceedings were liable to be dropped. However, his objectionwas rejected vide order dated 13.08.2012 which was said to bereceived on 17.08.2012. The petitioner was also intimated videletter dated 13.08.2012 regarding next date of hearing to be24.08.2012. The petitioner thereafter collected other relevantinformation and then made certain representations but theproceedings were not dropped and when another notice fixingdate of hearing on 15.11.2012 was received, while reiterating thatproceedings could not be continued as barred by limitation,present writ petition came to be filed. 3.Learned counsel for the petitioner argued that whilesubmitting his return for the assessment year 2010-2011, thepetitioner had given his present address but instead of sendingnotice on the said address, notice was given on a previous addressof the petitioner. He would also argue that the statement of factcontained in communication dated 13.08.2012 is factuallyincorrect that the petitioner refused to receive the notice. Fromthe communication made by the Department of Post India(Annexure-12) it is made clear that when the notice was taken,the same was returned with the report that the petitioner was notresiding at the given address on 17.09.2011. It is thus clear thatthere was no service of notice upon the petitioner, as mandatedunder Section 282 of the Act. The submission of the learnedcounsel for the petitioner is that once the notice could not beserved with the report that the petitioner was not found residingat the said address, it was incumbent on the part of the respondent to get the notice served in accordance with theprovisions contained in Order 5 Rule 17 CPC. 4.Learned senior counsel for the petitioner further argued thateven if it is assumed that no intimation regarding change of theoffice address is given, if the petitioner was not found, the noticescould not be treated as served. As all subsequent efforts to getthe notices served on the petitioner could not succeed, after13.09.2011, proceedings under Section 143 of the IT Act could notbe initiated as it was barred by law. respondent to get the notice served in accordance with theprovisions contained in Order 5 Rule 17 CPC. 4.Learned senior counsel for the petitioner further argued thateven if it is assumed that no intimation regarding change of theoffice address is given, if the petitioner was not found, the noticescould not be treated as served. As all subsequent efforts to getthe notices served on the petitioner could not succeed, after13.09.2011, proceedings under Section 143 of the IT Act could notbe initiated as it was barred by law. 5.On the other hand, learned counsel for the respondentswould submit that the petitioner has admitted that two addressesshown in the order dated 13.08.2012 (Annexure-4) weresubmitted by the petitioner. There is no averment in the writpetition that the petitioner had sent any intimation to thedepartment for change of the address. Therefore, the noticeswere issued at the address given in the PAN data base which isavailable with the department. 6.Relying upon the decision of the Supreme Court in the caseof Principal Commissioner of Income Tax, Mumbai vs. M/s.I-Ven Interactive Limited, Mumbai ,learned counsel for the respondent would submit that once thenotice is sent to assessee at the address as per PAN data basewithin time limit prescribed under proviso to Section 143(2) of theAct, actual proof of service is not required and there is substantialcompliance of the legal requirement. He would further submitthat in the aforesaid decision, it is also held that the assesseecould not assail the initiation of the proceedings on the basis of notice under Section 143(2) of the Act on the ground that adifferent address was shown in the income tax return. 7.We have heard learned counsel for the parties and perusedthe records. 8.In the writ petition, the case set out by the petitioner is thatnotice dated 13.09.2011 under Section 143(2) of the Act was notserved on him in accordance with law. In the writ petition, he hasstated that the notices were sent at the old addresses contained inthe old PAN data base. The petitioner has left the said addressand was not residing there any more. 9.The averments made by the petitioner in ground 'D' of thepetition are as under: "D.That the respondent further ignored to consider thatnotice under Section 143(2) of the Act is required to begiven on the present address mentioned in the returnitself and such notice cannot be issued on any old PANdata base address and in the present case as no noticewas issued to the petitioner at the present address therewas no question of refusal on his part." 10.Further, the petitioner has also made the followingaverments in ground 'H' of the writ petition, which reads as under: "H.That there is no reason why respondent did notsent the notice on address mentioned in the Income TaxReturn submitted by the petitioner. In fact, thepetitioner neither resides at Rajpura not at Jadoda thenhow he could have refused to receive the same. Thisreport of refusal appears to be concocted and forgeone." 11.From the averments made in the writ petition, it is clear thatthere is an admission on the part of the petitioner that the twoaddresses shown in the order dated 13.08.2012 (Annexure-4)were the addresses which were intimated by him but according to him they are now old PAN data base because the petitioner nolonger resides at Rajpura or at Jadoda. There is no averment inthe writ petition that the petitioner has given any intimation to thedepartment regarding change of his past residence and officeaddress. 12.In the order dated 13.08.2012 (Annexure-4), it has beenstated that the notice under Section 143(2) of the Act was sent tothe petitioner on 13.09.2011 by speed post on his office addressi.e. address of Rajapura, Degana. 11.From the averments made in the writ petition, it is clear thatthere is an admission on the part of the petitioner that the twoaddresses shown in the order dated 13.08.2012 (Annexure-4)were the addresses which were intimated by him but according to him they are now old PAN data base because the petitioner nolonger resides at Rajpura or at Jadoda. There is no averment inthe writ petition that the petitioner has given any intimation to thedepartment regarding change of his past residence and officeaddress. 12.In the order dated 13.08.2012 (Annexure-4), it has beenstated that the notice under Section 143(2) of the Act was sent tothe petitioner on 13.09.2011 by speed post on his office addressi.e. address of Rajapura, Degana. 13.Moreover, though we find that the stand taken by therespondent and what has been contained in the order dated13.08.2012 that the petitioner refused to take notice, is factuallynot correct, as is reflected from communication dated 05.10.2012(Annexure-A12) of the Department of Post India, in the samecommunication, what has been written is that when the noticedated 13.09.2011 was taken at Rajpura for service, it is reportedthat the petitioner was not residing at the given address. Thepetitioner has also stated that he no longer resides at the presentaddress. 14.From the aforesaid material on record, what emerges is thatthe petitioner had intimated to the department his official addressat Rajpura on which notice has been sent and the petitioner hadleft the said place without giving any intimation to the departmentregarding change to his official address. 15.Therefore, in view of the above factual position obtaining onrecord, the law laid down by the Supreme Court in the case ofM/s. I-Ven Interactive Limited (supra) squarely applies. That wasa case where the notices under Section 143(2) of the Act were sent on the address given in the PAN data base. Dispute was saidto be raised when the notices were not served. In the aforesaidfactual scenario their Lordships of the Supreme Court consideredthe legal position and held as below: 14.From the aforesaid material on record, what emerges is thatthe petitioner had intimated to the department his official addressat Rajpura on which notice has been sent and the petitioner hadleft the said place without giving any intimation to the departmentregarding change to his official address. 15.Therefore, in view of the above factual position obtaining onrecord, the law laid down by the Supreme Court in the case ofM/s. I-Ven Interactive Limited (supra) squarely applies. That wasa case where the notices under Section 143(2) of the Act were sent on the address given in the PAN data base. Dispute was saidto be raised when the notices were not served. In the aforesaidfactual scenario their Lordships of the Supreme Court consideredthe legal position and held as below: "6.1 At the outset, it is required to be noted that noticeunder Section 143(2) of the 1961 Act was sent by theAssessing Officer to the assessee at the address asmentioned in the PAN database on 05.10.2007 and thesame was within the time limit prescribed in proviso toSection 143(2) of the 1961 Act. However, it was thecase on behalf of the assessee that the said notice wasnot served upon the assessee as the assessee changedits name and address and shifted to new address priorthereto and therefore the said notice was not servedupon the assessee and by the time when subsequentlythe notices were served upon the assessee, notice underSection 143(2) of the 1961 Act was barred by the periodprescribed in proviso to Section 143(2) of the 1961 Actand therefore the assessment order is bad in law. It wasthe case on behalf of the assessee that videcommunication dated 06.12.2005 the assesseeintimated to the Assessing Officer about the new addressand despite the same the Assessing Officer sent thenotice at the old address. However, it is required to benoted that the alleged communication dated 06.12.2005is not forthcoming. Neither the same was producedbefore the Assessing Officer nor even the same has beenproduced before this Court. In the affidavit also, filed incompliance with order dated 21.08.2019, the assesseehas stated that the alleged communication dated06.12.2005 is not available. Thus, the assessee hasfailed to prove the alleged communication dated06.12.2005. The only document available is Form No.18filed with the ROC. Filing of Form-18 with the ROCcannot be said to be an intimation to the AssessingOfficer with respect to intimation of change in address.It appears that no application was made by the assesseeto change the address in the PAN data base and in thePAN database the old address continued. Therefore, inabsence of any intimation to the Assessing Officer withrespect to change in address, the Assessing Officer wasjustified in issuing the notice at the address available asper the PAN database. Therefore, the Assessing Officercannot be said to have committed any error and in factthe Assessing Officer was justified in sending the noticeat the address as per the PAN database. If that is so, thenotice dated 05.10.2007 can be said to be within theperiod prescribed in proviso to Section 143(2) of the1961 Act. Once the notice is issued within the period prescribed as per the proviso to Section 143(2) of theAct, the same can be said to be sufficient compliance ofSection 143(2) of the 1961 Act. Once the notice is sentwithin the period prescribed in the proviso to Section143(2) of the 1961 Act, in that case, actual service ofthe notice upon the assessee thereafter would beimmaterial. In a given case, it may happen that thoughthe notice is sent within the period prescribed, theassessee may avoid actual service of the notice till theperiod prescribed expired. Even in the relied upon caseby the learned Senior Advocate for the assessee in thecase of Hotel Blue Moon (2010 AIR SCW 1088) (supra),it is observed that the Assessing Officer must necessarilyissue notice under Section 143(2) of the 1961 Act withinthe time prescribed in the proviso to Section 143(2) ofthe 1961 Act. Therefore, in the facts and circumstancesof the case, the High Court is not justified in dismissingthe appeal and confirming the orders passed by thelearned C.I.T (Appeals) and the I.T.A.T. setting aside theassessment order solely on the ground that theassessment order is bad in law on the ground thatsubsequent service of notice upon the assessee underSection 143(2) of the 1961 Act was beyond the timeprescribed in the proviso to Section 143(2) of the 1961Act. 7.Now so far as the observations made by the HighCourt while concurring with the view of the learnedTribunal that merely by filing of return of income withthe new address, it shall be enough for the assessee todischarge its legal responsibility for observing properprocedural steps as per the Companies Act and theIncome Tax Act is concerned, we are of the opinion thatmere mentioning of the new address in the return ofincome without specifically intimating the AssessingOfficer with respect to change of address and withoutgetting the PAN database changed, is not enough andsufficient. In absence of any specific intimation to theAssessing Officer with respect to change in addressand/or change in the name of the assessee, theAssessing Officer would be justified in sending the noticeat the available address mentioned in the PAN databaseof the assessee, more particularly when the return hasbeen filed under E-Module scheme. It is required to benoted that notices under Section 143(2) of the 1961 Actare issued on selection of case generated underautomated system of the Department which picks up theaddress of the assessee from the database of the PAN.Therefore, the change of address in the database of PANis must, in case of change in the name of the companyand/or any change in the registered office or thecorporate office and the same has to be intimated to theRegistrar of Companies in the prescribed format (Form 18) and after completing with the said requirement, theassessee is required to approach the Department withthe copy of the said document and the assessee is alsorequired to make an application for change of address inthe departmental database of PAN, which in the presentcase the assessee has failed to do so." 16.Apparently, therefore, the notice under Section 143(2) of theAct issued to the petitioner, before expiry of the period oflimitation, for being served at the address of his office as peravailable information on PAN data base would fulfill the legalrequirement of service of notice under Section 143(2) of the Act. 17.We find no merit in the writ petition and the same isdismissed accordingly. Interim order stands vacated. (YOGENDRA KUMAR PUROHIT),J(MANINDRA MOHAN SHRIVASTAVA),ACJ 88-MohitTak/-