Decided on April 30,2008



M.A. Bakshi, V.P. - (1.) THE appeal of the assessee for assessment year 2001-02 is directed against the order dated 18-3-2006 of Commissioner (Appeals)-V, New Delhi. THE assessee has challenged the validity of assessment made by the assessing officer under Section 143(3) vide order dated 19-3-2004.
(2.) We have heard the parties and perused the record. The relevant facts in this case are that the assessee has filed a return declaring loss of Rs. 23,93,597 which was processed under Section 143(1). Subsequently the assessing officer had issued a notice under Section 143(2)(i) dated 30-10-2002. The said notice is claimed to have been received by assessee on 1-11-2002. The Commissioner (Appeals) has not accepted the claim of the assessee that the assessment made by the Assistant Commissioner was bad in law in order mandatory requirement of serving the notice under Section 143(2) of the Income Tax Act, 1961 is not satisfied in this case. The learned Counsel for the assessee contended before us that the assessing officer had admittedly issued the notice under Section 143(2) on 30-10-2002 when the last date of service of notice was 31-10-2002. The assessee had received the notice under Section 143(2) on 1-11-2002 i.e. after the expiry of 1 year after filing of the return. The Commissioner (Appeals) has pointed out that the Postal department is not part of the Income-tax department and that it cannot be presumed that they were available to receive the notice given to them for service at midnight and that the postal authorities would not be available to receive a notice for despatch at midnight. The learned Counsel for the assessee has invited our attention of the postal receipt which indicates the time of booking as 11.40 PM on 30-10-2002. It was contended that nearly it takes two to three days to serve any notice sent by speed post. According to the learned Counsel the fact if the notice has (sic) received on 1-4-2002 (sic) by the assessee is not rebutted by any evidence. Therefore the assessment made by the assessing officer is bad in law. Reliance was placed on the decisions of the Tribunal in the case of Cals Ltd. v. Dy. CIT in ITA 4873/Del/2003 order dated 25-8-2006. Reliance was also placed on the decision of the Delhi High Court in the case of CIT v. Rajesh Kumar Sharma, (2007) 165 Taxman 488 (Del) to support the contention that the burden is upon the revenue to establish the service of notice within a specified time.
(3.) THE learned departmental Representative on the other hand relied upon the orders of the revenue authorities. In our considered view the notice under Section 143(2) having been issued on 30-10-2002 at 11.40 PM could not ordinarily be served upon the assessee on 31-10-2002. THE assessee had categorically stated before the revenue authorities that a notice without complying with the proviso to Section 143(2) is unsustainable in law. We accordingly set aside the order of the assessment made by the assessing officer and order of the Commissioner (Appeals).;

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