Commissioner of Income Tax vs Bhuvnesh Maheshwari

To question correctness of the judgment dated 31.10.2013 passed by the Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur affirming the order passed by the Commissioner of Income Tax (Appeals), Udaipur dated 5.3.2013 in appeal No. 303/IT/UDR/2011-12, this appeal under Section 260-A of the Income Tax Act, 1961 (hereinafter referred to as ''the Act of 1961'') is before us.

The factual matrix necessary to be noticed is that the assessee filed a return of income for the assessment year 2009-10 on 26.3.2010 showing a taxable income of Rs. 6,03,140/-. The return filed was proceeded as per provisions of Section 143(1) of the Act of 1961 and the resultant refund was also issued.

The case of the assessee was selected for scrutiny being an outcome of survey. The Assessing Officer on 23.9.2010 issued a notice under Section 143(2) of the Act of 1961 and as stated in the order of assessment the same was served upon the assessee. The assessee, on the other hand, stated that the notice aforesaid was not served upon him and at the first instance he came to know about initiation of proceedings under Section 143(2) of the Act of 1961 under a notice dated 18.11.2011. The assessee objected the entire process being barred by limitation as per proviso to Section 143(2) of the Act of 1961, according to which such notice could have not been served on the assessee after expiry of six months from the end of financial year in which return was furnished. The Assessing Officer while negativating the stand taken by the assessee held that at the first instance the notice dated 23.9.2010 was served upon the assessee on 24.9.2010 i.e. within a period of six months from the date of closing the assessment year. The Assessing Officer framed the assessment invoking provisions of Section 144 of the Act of 1961 by observing that the assessee for the reasons best known to him did not comply with the terms of notice. By making various additions the assessment was framed at the income of Rs. 42,38,457/-.

The assessee being aggrieved by the order of assessment preferred an appeal before the Commissioner of Income Tax (Appeals), Udaipur with assertion that the order of assessment was without jurisdiction as the notice under Section 143(2) of the Act of 1961 was served after a lapse of a period of six months from the date of closure of the assessment year. Learned Commissioner of Income Tax (Appeals) after considering the submissions arrived at the conclusion that no notice under Section 143(2) was served upon the assessee on or before 30.9.2010, therefore, the process under the provision aforesaid was impermissible.

The revenue challenged the order passed by the Commissioner of Income Tax (Appeals) dated 5.3.2013 by way of filing an appeal before learned Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur but that came to be dismissed under the judgment impugned.

Before us, the arguments advanced by learned counsel for the appellant are that--

"(1) the Commissioner of Income Tax (Appeals), as well as learned Income Tax Appellate Tribunal failed to appreciate that a notice prior to expiry of six months was served upon an employee of the assessee namely Bherulal, therefore, the service is required to be treated sufficient; and

(2) as per Section 292-BB of the Act of 1961 a presumption should have been drawn about service of statutory notice upon the assessee as he participated in the assessment proceedings."

We do not find any merit in the arguments advanced.

So far as service upon Shri Bherulal said to be an employee of the assessee is concerned, it is pertinent to notice that by way of filing an affidavit Shri Bherulal stated on oath before the Commissioner of Income Tax (Appeals) that he was not in service with the assessee after 12.11.2008 and was not in touch with the assessee and never visited business place after leaving the service. He also stated that no notice from any government department/agency in his name or in the name of assessee was received by him. No counter to the statements made by Shri Bherulal on oath was made by any officer of the revenue. In view of it, we are of considered opinion that the Commissioner of Income Tax as well as learned Income Tax Appellate Tribunal rightly relied upon the statements made by Shri Bherulal.

The other argument advanced by learned counsel for the appellant is also bereft of merit in view of the fact that the presumption as per Section 292-BB of the Act of 1961 could have been drawn only if the assessee did not have raised objection about the service of notice before completion of the assessment in question. In the instant matter the assessee not only raised the objection but also contested the same before the Assessing Officer.

In view of whatever stated above, we do not find any merit in this appeal, hence the same is dismissed in limine.