Commissioner of Income Tax vs CPR Capital Services Ltd.

Learned Counsel for the Appellant states that in compliance with the order of this Court dated October 5, 2010, affidavit is prepared and would be filed during the course of the day. The affidavit is sworn by Mr. Vijay Sharma, Commissioner of income tax-L New Delhi.

It is stated that the matter was looked into and enquiry was conducted to ascertain whether any notice u/s 143(2) of the income tax Act as mentioned in the order-sheet of the case was issued to the Assessee or not.

After reverifying the records, the officials have not been able to trace the dispatch register or speed post list evidencing the dispatch of the notice.

It is also mentioned that the assessment record has also been scrutinized from where it is seen that order-sheets are duly signed by the director of the Assessee-company who had attended the proceedings from time to time and there is no reason to disbelieve the notings. However, the dispatch register or speed post list separately evidencing the dispatch of the notice are not available.

Mere noting in the order sheet would not suffice, inasmuch as, even the copy of the purported notice issued u/s 143(2) of the Act is not available on record. Moreover, even when in the assessment proceedings of September 24, 2001, it is recorded that notice u/s 142(1) as well as Section 143(2) of the Act along with questionnaire was issued, in the very next proceedings dated November 3, 2001, it is mentioned that reply of the Assessee are in response to notice u/s 142(1) of the Act only and there is no reference to notice u/s 143(2) of the Act. It was under these circumstances, orders dated October 5, 2010 were passed to see as to whether any notice u/s 143(2) of the Act was at all prepared and issued to the Respondent-Assessee or not.

Since the Department has failed to produce even the copy of the notice u/s 143(2) of the Act and it is admittedly not available on the record of the assessment order and there is no documentary evidence in the form of dispatch register, etc., to show that such notice was dispatched to the Respondent-Assessee, we have no option but to agree with the findings of the Tribunal that no such notice was prepared and served upon the Assessee. In the absence of this mandatory requirement of issuing statutory notice u/s 143(2) of the Act, the Tribunal has rightly quashed the assessment as null and void.

Finding no infirmity in the said order, this appeal is dismissed. The affidavit be taken on record.