Iapl/686/2007 Of Commissioner Of Income Tax And Another v. M/S Sarvpriya Sahkari Avas Samiti Ltd

Case :- INCOME TAX APPEAL No. - 686 of 2007 Appellant :- Commissioner Of Income Tax And AnotherRespondent :- M/S Sarvpriya Sahkari Avas Samiti Ltd.Counsel for Appellant :- Praveen KumarCounsel for Respondent :- R.S.Agrawal,Ashish Bansal,Mayank Jain Hon'ble Naheed Ara Moonis,J.Hon'ble Saumitra Dayal Singh,J. Earlier, the respondent-assessee had filed appearance.Names of three counsels for the assessee are shown.Learned counsel last engaged had earlier stated that hehad no instructions. Accordingly, fresh notices wereissued to the assessee to engage another counsel.Learned counsel appearing for the revenue has placed onrecord the affidavit of service. Office report dated 25.01.2019 indicates that noticedispatched by RPAD has been returned unserved. In anycase, none of the counsel engaged earlier has withdrawntheir appearance. List revised. In view of statement already on record, thematter has been proceeded ex parte. Heard Shri Praveen Kumar, learned counsel for therevenue. Present appeal arises from the order of the Income TaxAppellate Tribunal, Delhi Bench "H", New Delhi, dated23.03.2007 in ITA No. 3651/Del/2005 for the A.Y. 1996-97.By that order, the Tribunal has allowed the assessee'sappeal and quashed the reassessment order passed bythe assessing authority dated 24.08.2005. "(1) Whether the notice issued under Section 148 of the Act wasissued by the competent authority? and; (2) Whether the service of notice at the NOIDA address of therespondent -assessee is a valid service?" At this stage, learned counsel for the revenue hassubmitted that two other questions that go to the root ofthe matter, also arise. Thus, the following questions of lawhave also been pressed: "3. Whether the reassessment proceedings initiated by AssistantCommissioner of Income Tax, Circle, NOIDA, suffered frominherent lack of jurisdiction, since according to the Tribunal, thereassessment notice was issued by that assessing authority on31.3.2003? 4. Whether the finding of the Tribunal that the AssistantCommissioner of Income Tax, Circle NOIDA, had no territorialjurisdiction over the assessee, is perverse and unreasoned?" Having heard learned counsel for the revenue and havingperused the record, according to the revenue,reassessment proceedings were initiated against theassessee vide notice dated 31.03.2003 issued by theAssistant Commissioner of Income Tax, Circle, NOIDA.The date of the notice is borne out from the face of thesame being 26.03.2003. Its copy also reveals that thereexists an endorsement of the service having been refusedby Sunil Kumar Chauhan, the erstwhile Secretary of theSociety. Some information also appears to have beendisclosed by the said Sunil Kumar Chauhan with respectto correct address of the respondent-assessee. Without going into the aspect of the correct addresss ofthe assessee, it is the finding of the Tribunal that thejurisdictional notice issued under Section 148 of theIncome Tax Act, 1961 (hereinafter referred to as the Act)was dispatched by post, on 31.03.2003. Under Section 149 of the Act, the limitation is prescribedwith reference to the date of issue of such notice and notwith respect to date of service of that notice. Again, it appears to have remained undisputed before theTribunal that the limitation to issue that notice was sixyears. It ended on 31.03.2003. The notice under Section148 of the Act was issued on the last date of limitation, asper the finding of the Tribunal, itself. Therefore, conclusiondrawn by the Tribunal that that notice was a nullity, iserroneous. Without going into the aspect of the correct addresss ofthe assessee, it is the finding of the Tribunal that thejurisdictional notice issued under Section 148 of theIncome Tax Act, 1961 (hereinafter referred to as the Act)was dispatched by post, on 31.03.2003. Under Section 149 of the Act, the limitation is prescribedwith reference to the date of issue of such notice and notwith respect to date of service of that notice. Again, it appears to have remained undisputed before theTribunal that the limitation to issue that notice was sixyears. It ended on 31.03.2003. The notice under Section148 of the Act was issued on the last date of limitation, asper the finding of the Tribunal, itself. Therefore, conclusiondrawn by the Tribunal that that notice was a nullity, iserroneous. As to the other aspect, whether the AssistantCommissioner of Income Tax, Circle, NOIDA, was theauthority having jurisdiction over the assessee, the findingof the Tribunal appears to be wholly unreasoned andperverse. In that regard, it does appear that the assesseeraised the aforesaid ground at the fag end of theassessment proceeding, however, no material orevidence appears to have been brought before theTribunal to establish either that the AssistantCommissioner of Income Tax, Circle, NOIDA, was neverthe assessing officer of the assessee or that hisjurisdiction was later transferred or otherwise vested inany other authority. In that regard, it may be further notedthat upon the notice being eventually served on theassessee, it did participate in the assessmentproceedings and raised objection as to the merits which was rejected. The Tribunal has failed to consider thatissue on merit and instead quashed the reassessmentorder, in entirety. In view of the above, the questions of law 3 & 4, framedabove, are answered in favour of the revenue and againstthe assessee. The order of the Tribunal is set aside andthe matter remitted to the Tribunal to decide the appealafresh, on merits. The present appeal is accordingly allowed. The questions of law initially framed by this Court, are leftunanswered. Order Date :- 8.9.2021Prakhar