INCOME TAX ACT, 1961

Assessment- Notice under section 143(2)-Participation in proceedings by assessee

AO issued notice under section 143(2) to assessee. Assessee challenged the said notice after a gap of five years on ground that same had not been served upon him. Assessee was submitted that department had failed to prove the service, therefore, assessment had to be quashed. But, CIT (A) was held that notice was duly served upon assessee. In this case, the department filed a copy of the order sheet of assessment proceedings and pointed out that chartered accountant and authorised representative of the assessee attended the assessment proceedings as early as. If no notice was served, then how chartered accountant of assessee attended the proceedings. Service of notice was to be held as valid. He also filed a copy of the letter through which it was informed that a notice had been served under section 143(2) raising various queries and no objection was taken ever against this notice. This fact clearly showed that the notice was duly served on the assessee. Held: It was cleared that authorised representative appeared against notice served under section 143(1). Further a letter had been issued in which it was again stated that the case was selected for scrutiny issued under section 143(2) but no objection had been taken even to this letter. If submission of assessee was correct that no notice was served, then one unable to understand how assessee`s authorised representative made appearance before AO. It was clearly showed that assessee`s authorised representative had attended in response to the letter as well as notice under section 143(2).The allegation that no notice was served but, still assessee`s appearance before the authorities itself showed that the notice must had been served otherwise there was no occasion for assessee to go before the assessing authority. [Para 7]

Normally when assessee had not received a notice, then assessee was supposed to raise this legal objection before AO or in any case before CIT(A). Having chosen not to raise any objection before AO and then not before CIT(A), assessee could not press this issue again before the Tribunal after a gap of 5 years because at that point of time it might not be always possible for the Revenue authorities to show the proof of service. In these circumstances, the ground regarding validity of service of notice was to be rejected and it was to be held that the assessee had been served notice under section 143(2). [Para 12]

Income-tax Act, 1961 Section 143

Case Law Analysis:CIT v. Regency Express Builders (P.) Ltd. [2007] 161 Taxman 1 / 291 ITR 55 (Delhi) (para 7)and CIT v. Abdul Khader Ahamed [2006] 156 Taxman 206 / 285 ITR 57 (Ker.) (para 11) followed.

P.V. Doshi v. CIT [1978] 113 ITR 22 (Guj.) (para 9) distinguished.