M/S. Mundra Woollen Mills (P) Ltd v. The Assistant Commissioner Of Income Tax, Circle

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No. 165 / 2015 M/s. Mundra Woollen Mills (P) Ltd., Having Its Registered Office At,RIICO Industrial Area, Jaipur Raod, Kekri, Through Its Director, Shiv Ratan Mundra ----Appellant Versus 1. The Assistant Commissioner of Income Tax, Circle-2, Central Revenue Building, Jaipur Road, Ajmer 2. Income Tax Appellate Tribunal, Jaipur Bench, Jaipur, Rajasthan Chamber Bhawan, M.I. Road, Jaipur Through Assistant Registrar 3. Union of India , Through the Commissioner of Income Tax, Central Revenue Building, Jaipur Road, Ajmer ----Respondents _____________________________________________________ For Appellant(s) : Mr. Anant Kasliwal For Respondent(s) : Ms. Parinitoo Jain _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Judgment 07/11/2017 1.By way of this appeal, the appellant has assailed thejudgment and order of the Tribunal whereby the Tribunal hasdismissed the appeal of the assesse. 2.This court while admitting the matter framed the following questions of law:- “i) Whether on a proceeding initiated underSection 143(2) of the Income Tax Act, 1961,service of notice on the assessee is necessary or not if objection regarding service has beenraised and not dealt with whether initiation ofthe proceedings can be said to be valid. ii) Whether the discrepency in the internalstock register not forming party of thestatutory books of accounts and consequentialaddition can be said to be legally justified whenno discrepency in the statutory books ofaccounts could be shown. iii) Whether the ITAT was justified in havingconfirmed the valuation of estimated quantityof stock listed out during the survey proceedingwithout reconciling the same with the regularcomputerized quantitive records maintained bythe appellant company.” 3.We have heard counsel for both the sides. 4.Taking into consideration the certificate which is issued on17[th] August, 2009 and other documents on record, prima facie itseems that though the notice was sent by speed post, it has notbeen served on the appellant. An endeavour is made by counselfor the appellant to relied upon the decision of Jharkhand HighCourt in case of Milan Poddar vs. Commissioner of Income Tax,Central Revenue Building, Main Road, Ranchi & Anr. reported in[2013] 357 ITR 619 (Jharkhand) wherein it has been held asunder:- “5. Learned counsel for the appellant drew ourattention to the order-sheet wherein theAssessing Officer has taken note of theobjection of the assessee in the order sheetdated 10.9.2008. It is submitted that findingsubstance in the objection of the assessee, theAssessing Officer issued notice to thePostmaster of the area concerned i.e.; G.P.O.,Doranda, from where notice under Section143(2) alleged to has been sent throughSpeed-post. Not only this but a letter underSection 133(6) of the Act of 1961 was alsoserved upon Postmaster, G.P.O., Doranda. ThePostmaster gave reply to the notice andsubmitted that the request of the Income Tax Department is time barred as the record of the'Speed-post' is not kept after expiry of threemonths. According to learned counsel for theappellant, in view of the above facts, it is clearthat the presumption under Section 292BB ofthe Act of 1961, cannot be taken and there wasno material available on the record to provethat the notice was served upon assessee atall, what to say of in time. Department is time barred as the record of the'Speed-post' is not kept after expiry of threemonths. According to learned counsel for theappellant, in view of the above facts, it is clearthat the presumption under Section 292BB ofthe Act of 1961, cannot be taken and there wasno material available on the record to provethat the notice was served upon assessee atall, what to say of in time. 8. We have considered the submissions of theparties on this issue. It will be relevant tomention here that as per Section 282 of theAct of 1961, notice can be served either bypost or in the manner in which the summonsare issued by the Courts under the provisionsof Code of Civil Procedure. Therefore, if theargument of the learned counsel for theappellant, that Income Tax Act of 1961 isspecial Act and it contains the provisions forservice of notice, according to which only anotice can be served upon assessee; then inthat view of the matter, the only recourse isthat notice should be issued either by post or itmay be served as is served under theprovisions of Code of Civil Procedure. In thiscase, a notice under Section 143(2) of the Actof 1961 was alleged to has been sent by post,which includes sending notice by Ordinary Post,Post under Certificate, Registered Post,Registered A/D or by Speed Post and this factis not in dispute that notice was sent by "SpeedPost" and, therefore, notice was in accordancewith law under Section 282(1) of the Act of1961. 11. The next question arose is whether in thefacts of the case, the Tribunal has committederror of law in holding that the service wasvalid?, which is the question number 1 framedin this appeal. 15. In a matter of service through post, thereare certain ways whereby notices are sentthrough department of post. In this case, aswe have already discussed that in the ordersheet, name and address of the assessee wasmentioned and address is wrong was not theplea of the assessee. Therefore, Departmentsent the notice under Section 143(2) of the Actto the Assessee on the assessee's address, andthat too through Speed Post which is morereliable mode therefore, it is required to bepresumed that notice was delivered to theaddressee.” 5.In our considered opinion, the appellant was not servedotherwise there is no need of another notice to be issued in2010. 6.In that view of the matter, without entering into merits ofthe appeal we are remitting back the matter to the Tribunal. Theorder of Tribunal is quashed and set aside. 7.It is made clear that we have not expressed any opinion onmerit and the Tribunal will hear the appeal afresh and will decidethe issue without being influence by this order of remitting backto the Tribunal. 8.Both the sides will appear before the Tribunal on 11[th]December, 2017. 9. The appeal stands allowed. (VIJAY KUMAR VYAS),J. (K.S. JHAVERI),J. A.Sharma/11