|COURT:||Bombay High Court|
|CORAM:||A. K. Menon J., M. S. Sanklecha J|
|CATCH WORDS:||Assessment, Non-service of s. 143(2) notice, null & void|
|COUNSEL:||Girish Dave, Kadambari Dave|
|DATE:||February 7, 2017 (Date of pronouncement)|
|DATE:||February 15, 2017 (Date of publication)|
|FILE:||Click here to download the file in pdf format|
|S. 143(2)/ 292BB: The issue of a notice u/s 143(2) bearing the wrong (old) address of the assessee does not amount to a valid service of the notice u/s 282 r.w.s. 27 of the General Clauses Act. The non-service of a notice u/s 143(2) before the expiry of 12 months from the end of the month in which the return was filed renders the assessment void. As the assessee objected to the same before completion of proceedings, the assessment order is not saved by s. 292BB|
(i) It is undisputed position before us that the notice under Section 143(2) of the Act which was handed over to the post office on 30th November, 2007 was incorrectly addressed i.e. it was addressed to the assessee’s old office at Nariman Point, Mumbai. In terms of Section 282 of the Act as existing in 2007 a notice may be served on the person named therein either by post or as if it were a summons issued by the Court under the Code of Civil Procedure. Section 27 of the General Clauses Act provides that where any Central Act requires a document to be served by post where the expression “serve” or “given” or “sent” shall be deemed to have been effected by properly addressing, prepaying and posting. In such cases, unless the contrary is proved which would be deemed to have been served at the time when the letter would be delivered in the ordinary course of post to the addressee. In this case admittedly the envelope containing the notice was wrongly addressed. Thus the presumption under Section 27 of the General Clauses Act cannot be invoked. It is very pertinent to note that subsequently i.e. on 11th December, 2007 the Assessing Officer served the notice upon the correct address of the respondentassessee. This posting to the correct address was on the basis of the record which was already available with the Assessing Officer by virtue of letter dated 23rd November, 2006 addressed by the respondent to the Assessing Officer. Admittedly there was no fresh intimation/knowledge received by the Assessing Officer after 23rd November, 2006 and before 11th December, 2007 giving the new address of the assessee. Moreover, as the objection to the Assessment proceeding was taken much before the Assessment proceedings were completed on the basis of no service of notice before the expiry of the period, the Assessment Order will not be saved by Section 292BB of the Act.
(ii) In the above view, the impugned order of the Tribunal renders a finding of fact that the notice under Section 143(2) has not been served at the correct address on or before 30th November, 2007 which is not shown to be incorrect. It follows that Assessment proceedings concluded on the basis of such invalid notice is void.
(iii) In the above view, as the position is self evident on a plain reading of Section 143(2) of the Act read with Section 127 of the General Clauses Act, thus no substantial question of law arises for our consideration.