- (1.) Heard learned counsel for the parties. The appellant-assessee submitted his returns of income on 20.3.2007 declaring total income of Rs. 2,51,600/- for the period 2006-07 and the said returns was processed under Section 143(1) of the Income Tax Act, 1961 (for short-Act of 1961). The appellant's case was selected for scrutiny and on 24/25.10.2007, a notice under Section 143(2) of the Act of 1961 was issued to the appellant-assessee. The said notice was issued by "Speed-Post" on 24/25.10.2007 vide receipt no. 4544 and Speed Post No. EE875408254IN dated 25.10.2007 fixing the date for compliance on 30.11.2007. On fixed date, i.e.; on 30.11.2007, nobody appeared on behalf of the appellant-assessee and this fact was taken note in the order sheet dated 30.11.2007 by the Assessing Officer. Then, on 4.4.2008, it was ordered that notice under Section 142(1) of the Act of 1961 be issued but that order was not complied with. Then, it was again directed to issue notice on 8.8.2008. In response to that notice under Section 142(1), one person appeared and filed photocopy of office copy of returns of Assessment Year 2006-07, computation of Income, P & L Account and Balance Sheet. However, as per the Assessing Officer, when he was asked to mark his attendance, he refused to mark his attendance. On 13.8.2008, the assessee's representative filed reply to notice under Section 142(1), dated 16/25.7.2008 and in reply, it has been stated that notice under Section 143(2) was not served within statutory period and therefore, the case under Section 143(3) may be dropped. After considering this objection, the Assessing Officer held that notice was duly served and proceeded to compute the income and passed the assessment order on 17.12.2008 assessing the total income of assessee to the tune of Rs. 19,92,440/- and ordered for initiation of penalty proceedings under Sections 271(1)(b) & 271(1)(c) of the Act of 1961.
(2.) Against the assessment order dated 17.12.2008, the assessee preferred an appeal before the C.I.T.(Appeals), Ranchi, who vide order dated 4.6.2009 allowed, the appeal of the assessee only on the ground that notice under Section 143(2) of the Act of 1961 was not served within the stipulated period of 12 months from the expiry of the end of the month in which the returns was furnished. The C.I.T. (Appeal) in view of this decision, on question of law in favour of assessee, did not choose to decide other issues raised by the assessee with respect to the addition made by the Assessing Officer. Against this decision of the C.I.T. (Appeal) dated 4.6.2009, the Revenue preferred an appeal only on one ground obviously, for the reason that the C.I.T. (Appeal) allowed the appeal of the assessee only on one issue and that issue was relating to the mandatory service of notice under Section 143(2) of the Act of 1961. The following ground was raised in the appeal:-- Whether on the facts and in the circumstances of the case, the Id. CIT (A) was justified in canceling the assessment under Section 144 of the Income Tax Act, 1961 on the ground that notice under Section 143(2) was not properly served well in time.
(3.) The Income Tax Appellate Tribunal, Circuit Bench, Ranchi by a detailed order held that notice under Section 143(2) was duly served upon the assessee and finding recorded by the C.I.T. (Appeal) was reversed. However, in spite of the fact of reversal of the finding on preliminary issue challenging the jurisdiction of the Assessing Officer, the learned Tribunal itself did not choose to remand the matter to the C.I.T. (Appeal) for deciding the other points raised by the assessee and observed that since the assessee did not prefer any cross-objection or appeal before the Tribunal, the matter cannot be remanded to the C.I.T. (Appeal). However, the C.I.T. (Appeal) observed that the assessee may, if he is so advised, approach the learned C.I.T. (Appeal) seeking adjudication on the other grounds of appeal, which were specifically taken before C.I.T. (Appeal) but not decided by C.I.T. (Appeal). In this fact situation, this appeal has been preferred by the assessee and admitted for hearing on following substantial questions of law:-- (a) Whether the Tribunal was right in arriving at the conclusion that the notice under Section 143(2) of the Income Tax Act deemed to have been served upon the assessee in spite of the fact that no postal receipt of sending the notice by speed post was before the Assessing Officer and the Income Tax Appellate Tribunal? (b) Whether the Income Tax Appellate Tribunal was right in rejecting the contention of the petitioner on merits about the correctness of addition made by the A.O. only on the ground that since C.I.T. (Appeal) set aside the assessment order on the ground of jurisdiction and, therefore, without filing any cross-objection or appeal in the matter where the order passed by the C.I.T. (Appeal) was in favour of the assessee, the Tribunal has no jurisdiction to address the issue about the correctness of addition made by the A.O.?;