Mr. Sham v. N. J. Jamadar, Jj

Digitallysigned byPURTIPURTIPRASADPRASADPARAB IN THE HIGH COURT OF JUDICATURE AT BOMBAYPARABDate:2022.03.08 ORDINARY ORIGINAL CIVIL JURISDICTION11:23:21+0530 INCOME TAX APPEAL NO. 1528 OF 2017 Pr. Commissioner of Income Tax-19 V/s.Surendra R. Shah ….Appellant …Respondent Mr. Sham V. Walve for Appellant.None for Respondent. ---- ---- CORAM : K.R. SHRIRAM & N. J. JAMADAR, JJ. DATED : 3[rd] MARCH, 2022 P.C. : 1. The following question of law is proposed in this appeal. QUESTION OF LAW 1.Whether on the facts and circumstances of the caseand in Law, the questioning of the service of a statutorynotice after an inordinate delay should be decided on theprinciples of preponderance of probability inferred fromthe conduct of the assessee in the spirit of the provisions ofsection 292BB of the I.T. Act, 1961? 2. Mr. Walve submitted that the short point is whether the notice under Section 148 of the Income Tax Act, 1961 (the Act) has been served.That depends on facts of the case and the evidence that appellant shows toprove that notice has been served. Mr. Walve also relied upon Section292BB of the Act to submit that the assessee having participated in the proceedings cannot raise this objection if he has not raised such objectionbefore completion of assessment proceedings. Mr.Walve relied upon theassessment order to justify that such objection was never raised. 3.We have considered the assessment order, order of CIT (A) aswell as the Income Tax Appellate Tribunal (ITAT). What the assessmentorder says is only a gist of the submissions made by assessee in theirresponse to notice under Section 142(1) of the Act. The entire letter has notbeen reproduced. Therefore, from the assessment order we cannot makeout whether such an objection before completion of assessment was raised. 4.Moreover, in the impugned order passed by the ITAT, the ITAThas noted one important fact that the assessee had taken specific groundthat notice under Section 148 of the Act was never served. The assesseehad even filed affidavit to that effect. Keeping that in mind the CIT (A)called upon the concerned Assessing Officer to send the case records forperusal. The Assessing Officer did not send case records. Subsequently,letter was even written to the concerned Assessing Officer. Still the caserecords were not sent. We have to note that even before the ITAT, the caserecords have not been produced for tribunal’s perusal. In the circumstances, there is no denial on facts to the affidavitfiled by assesee that notice under Section 148 of the Act has not beenserved. Further the lack of response from the Assessing Officer compels usto draw adverse inference that such notice has not been served and if thecase records had been produced that fact would have been established. 5. 5.In our view, the Tribunal has not committed any perversity orapplied incorrect principles to the given facts and when the facts andcircumstances are properly analysed and correct test is applied to decide theissue at hand, then, we do not think that question as pressed raises anysubstantial question of law. The appeal is devoid of merits and it is dismissed with no orderas to costs. (N. J. JAMADAR, J.) (K.R. SHRIRAM, J.)