Ita/62/2015 Of Principal Commissioner Of Income Tax v. Prahallad Moharana

04. 04.12.2019Heard learned Senior Standing Counsel for the appellant-Income Tax Department. appellant-Income Tax Department. 2. By way of this appeal, the appellant-Income Tax Department has challenged the order dated 26.05.2015 passed by learned Income Tax Appellate Tribunal, Cuttack Bench, Cuttack (hereinafter referred to as “the Tribunal”) in ITA No.226/CTK/2013 allowing the appeal preferred by the assessee. 3. Paragraph nos.5, 6 & 7 of the impugned order reads as under: 5. On the other hand, the ld A.R. relied upon the orders of the authorities below. 6. The ld. Counsel for the assessee also relied upon the decision of ITAT Delhi Bench in IT Appeal No.1017 (Del) of 2000 A.Y. 1996-97 and the relevant part in para 8 of the said decision is reproduced hereinbelow: “In the present case, the notice purportedly, served on the assessee firm was neither served on any of its partners or its agent duly authorized to receive the said notice. As is evident from the record, the same was served on one Mr. A. Singh who was neither the agent of the assessee firm duly authorized to receive the said notice on its behalf nor even its employee. The said person to whom the notice in question was claimed to be served and who had even acknowledged receipt of the same, was neither identified by the notice server nor delivering or tendering of the said notice to him was witnessed as required by rule 18 of order V of CPC. Before the ld CIT (A) as well as before us, the plea raised on behalf of the assessee firm has been that the said notice was not received by it as claimed by the revenue and it was, therefore, incumbent upon the department to place on record the relevant material to establish that the service was made either on the assessee firm itself or any of [its partners or on somebody else duly authorized by it to receive such notice. The revenue, however, has failed to discharge this onus that lay on it. Having regard to all these facts of the case and keeping in view the specific provisions of section 282 of the Income Tax Act read with relevant provisions of CPC as discussed hereinabove as well as the legal position emanating from the aforesaid judicial pronouncements, we are of the view that there was no valid service of notice on the assessee under Section 143(2) within the time specified in the proviso to the said section and in the absence of compliance of the said statutory requirement, the assessment completed in pursuance of the said notice was ab in itio invalid. The same is, therefore, quashed allowing the appeal of the assessee.” 7. In the circumstances and facts of the case, the service made on a wrong person who in fact is not related to the assessee either as an employee or an authorized agent and, therefore, said service of notice is not valid in view of provisions of section 282 of the Act and, therefore, notice so issued is void abi nitio and the assessment so made is directed to be quashed. Hence, Ground of appeal raised by the assessee is allowed. xxx 4. We have gone through the impugned order. We are in complete agreement with the view taken by the Tribunal vide the impugned order. Further, the contention raised on behalf of appellant-Income Tax Department regarding applicability of provision of Section 292 BB of the Income Tax Act to the facts and circumstances of the case appears to have no force as the same will not apply in this case. In view of the above, this appeal stands dismissed. Misc. Case(s)/I.A(s) connected to this appeal, if any, is/are also dismissed. .…….......……………… ( K.S. Jhaveri ) Chief Justice …………………..……… (K.R. Mohapatra) Judge