REPORTABLE
\nIN THE SUPREME COURT OF INDIA
\nCIVIL APPELLATE JURISDICTION
\nCIVIL APPEAL NO.8132 OF 2019
\n(Arising out of SLP(C) No.3530\/2019)
\nPrincipal Commissioner of Income Tax,
\nMumbai \u2026Appellant
\nVersus
\nM\/s IVen
\nInteractive Limited, Mumbai \u2026Respondent
\nJ U D G M E N T
\nM.R. SHAH, J.
\nLeave granted.
\n2. Feeling aggrieved and dissatisfied with the judgment and
\norder dated 27.06.2018 passed by the High Court of Judicature
\nat Bombay in Income Tax Appeal No.94 of 2016, by which the
\nHigh Court has dismissed the said appeal preferred by the
\nRevenue and has confirmed the orders passed by the learned
\nC.I.T (Appeals) as well as I.T.A.T quashing and setting aside the
\nassessment order for A.Y. 200607,
\nthe revenue has preferred the
\npresent appeal.
\n1
\n3. That the respondent \u2013 assessee filed return of income for
\nthe Assessment Year 200607
\non 28.11.2006 declaring total
\nincome of Rs.3,38,71,716\/.
\nThe said return was filed under EModule
\nScheme and thereafter a hard copy of the same was filed
\non 05.12.2006. The return of income was accompanied with
\nbalance sheet and profit and loss account. The return was
\nprocessed under Section 143(1) of the Income Tax Act, 1961
\n(hereinafter referred to as the \u20181961 Act\u2019). That a notice under
\nSection 143(2) of the 1961 Act was issued to the respondentassessee
\non 05.10.2007. The notice was sent at the assessee\u2019s
\naddress available as per the PAN database. That a further
\nopportunity was provided to the assessee vide notice under
\nSection 143(2) of the 1961 Act on 25.07.2008. The said notice
\nwas also issued to the assessee at the available address as per
\nthe PAN database. That thereafter, further notices under Section
\n142(1) of the 1961 Act were issued to the assessee on
\n23.01.2008, 25.07.2008 and 05.10.2008 along with
\nquestionnaires calling for various details and were duly served on
\nthe respondentassessee
\ncompany. In response to the said
\nnotice, the representative of the company appeared on
\n28.11.2008 and 04.12.2008. The assessee participated in the
\n2
\nproceedings before the Assessing Officer. However, the assessee
\nchallenged the notice under Sections 143(2) and 142(1) of the
\n1961 Act on the ground that the said notices were not served
\nupon the assessee as the assesseecompany
\nnever received those
\nnotices and the subsequent notices served and received by the
\nassesseecompany
\nwere beyond the period of limitation
\nprescribed under proviso to Section 143 of the 1961 Act.
\n3.1 That the Assessing Officer vide assessment order dated
\n24.12.2008 completed the assessment under Section 143(3) of
\nthe 1961 Act by making disallowance of Rs. 8,91,17,643\/under
\nSection 14A of the 1961 Act, read with Rule 8 of the Income Tax
\nRules and computed total income at Rs.5,52,45,930\/.
\n3.2 Being aggrieved by the assessment order dated 24.12.2008,
\nthe assessee preferred appeal before the learned C.I.T (Appeals).
\nThe learned C.I.T (Appeals) allowed the appeal vide order dated
\n23.12.2010 holding, inter alia, that the Assessing Officer
\ncompleted the assessment under Section 143(3) of the 1961 Act,
\nwithout assuming valid jurisdiction under Section 143(2) of the
\n1961 Act, and therefore, the assessment framed under Section
\n143(3) of the 1961 Act was invalid. The learned C.I.T (Appeals)
\nobserved that as the subsequent service of notice under Section
\n3
\n143(2) of the 1961 Act was beyond the period of limitation
\nprescribed under the proviso to Section 143 of the 1961 Act and
\nearlier no notices were served upon the assessee and\/or received
\nby the assessee as the same were sent at the old address and in
\nthe meantime companyassessee
\nchanged its address and
\ntherefore the assessment order was bad in law. The Revenue
\npreferred appeal before the Income Tax Appellate Tribunal, which
\ncame to be dismissed by the learned I.T.A.T. vide order dated
\n19.01.2015. The order passed the learned C.I.T (Appeals) as well
\nas I.T.A.T. have been confirmed by the High Court, by the
\nimpugned judgment and order. Hence, the Revenue has
\npreferred the present appeal.
\n4. Shri H. Raghavendra Rao, learned Advocate appearing on
\nbehalf of the Revenue has vehemently submitted that the
\nimpugned judgment and order passed by the High Court
\ndismissing the appeal and thereby confirming the orders passed
\nby the learned C.I.T (Appeals) and I.T.A.T holding that the
\nassessment order was bad in law, is contrary to the provisions of
\nSection 143(2) of the 1961 Act.
\n4.1 It is further submitted that the Assessing Officer sent the
\nnotice under Section 143(2) of the 1961 Act to the assessee at the
\n4
\navailable address as per the PAN database. It is submitted that
\nas such there was no intimation by the assessee to the Assessing
\nOfficer with respect to change of address. It is submitted
\ntherefore that notice under Section 143(2) of the 1961 Act was
\nsent to the assessee on the available address as per the PAN
\ndatabase. It is submitted therefore that once notice under
\nSection 143(2) of the 1961 Act was issued and sent to the
\nassessee on the available address as per the PAN database, it can
\nbe said to be a sufficient compliance of the relevant provisions of
\nthe 1961 Act, more particularly Section 143(2) of the 1961 Act.
\n4.2 It is further submitted that as such the High Court has not
\nproperly appreciated the fact that the alleged communication
\ndated 06.12.2005 from the respondentassessee
\nto the Assessing
\nOfficer intimating new address of the assessee was never received
\nby the Assessing Officer. It is submitted that even today also the
\nassessee is not in a position to produce the said communication.
\nIt is submitted therefore the respondentassessee
\nhas failed to
\nprove that the alleged communication dated 06.12.2005 was, in
\nfact, sent to the Assessing Officer, intimating about new address.
\n4.3 It is further submitted by the learned Advocate appearing on
\nbehalf of the Revenue that, as such, the learned C.I.T (Appeals)
\n5
\nhas heavily relied upon the alleged communication dated
\n06.12.2005 intimating the change of address to the Assessing
\nOfficer by the assessee, however, the communication dated
\n06.12.2005 is not forthcoming and has not been produced. It is
\nsubmitted therefore that in the facts and circumstances of the
\ncase the Assessing Officer was justified in sending the notices
\nunder Section 143(2) of the 1961 Act at the available address as
\nper the PAN database. It is submitted therefore that the learned
\nC.I.T (Appeals), I.T.A.T and the High Court have committed a
\ngrave error in holding that the assessment order is bad in law as
\nthe notice under Section 143(2) of the 1961 Act was beyond the
\nperiod of limitation.
\n4.4 It is further submitted that as such thereafter the assessee
\ndid participate in the assessment proceedings and therefore the
\nlearned C.I.T (Appeals) ought to have considered the appeal on
\nmerits and ought not to have set aside the assessment order
\nsolely on the ground that the assessment order is bad in law.
\n4.5 Making the above submissions, it is prayed to allow the
\npresent appeal.
\n5. Shri S.K. Bagaria, learned Senior Advocate appearing on
\nbehalf of the respondentassessee
\nhas made strenuous efforts to
\n6
\nsupport the orders passed by the learned C.I.T (Appeals) and
\nconfirmed by the I.T.A.T. and the High Court. It is submitted
\nthat as such the Assessing Officer was aware of the new address
\nof the assessee and therefore the Assessing Officer was required
\nto send the notices on the new address. It is submitted that
\ninstead the Assessing Officer sent the notice at the old address
\nand therefore the same was never served upon the assessee. It is
\nsubmitted that by the time the subsequent notice was served
\nupon the assessee, the notice under Section 143(2) of the 1961
\nAct was barred by limitation as provided under Section 143(2) of
\nthe 1961 Act. Therefore, the learned C.I.T (Appeals), I.T.A.T and
\nthe High Court are right in holding that the assessment order
\nwas bad in law.
\n5.1 Learned Senior Advocate appearing on behalf of the
\nassessee has further submitted that as such the change of
\naddress and change in the name of the assesseecompany
\nwas
\nintimated to the Registrar of Companies in Form18.
\nIt is
\nsubmitted therefore in fact the name of the company was
\nchanged and the change in the address has been established and
\nproved.
\n7
\n5.2 Shri Bagaria, learned Senior Advocate has further
\nsubmitted that the Assessing Officer was in the knowledge of the
\nnew address, which is evident from the fact that the Assessment
\nOrders for A.Y 200405
\nand A.Y. 200506
\nwere sent at the new
\naddress.
\n5.3 Relying upon the decision of this Court in the case of
\nAssistant Commissioner of Income Tax v. Hotel Blue Moon reported
\nin (2010) 3 SCC 259, it is submitted by the learned Senior
\nAdvocate for the assessee that as held by this Court the issuance
\nof the notice under Section 143(2) of the 1961 Act within the time
\nprescribed in the proviso to Section 143(2) of the 1961 Act is
\nmust and mandatory. It is submitted that therefore when it was
\nfound that notice under Section 143(2) of the 1961 Act was not
\nserved upon the assessee within the time prescribed in the
\nproviso to Section 143(2) of the Act, the assessment order was
\nbad in law and the same was rightly set aside by the learned
\nC.I.T (Appeals), confirmed up to High Court.
\n5.4 Making the above submissions and relying upon the
\naforesaid decision of this Court, it is prayed to dismiss the
\npresent appeal.
\n8
\n6. We have heard the learned counsel for the respective parties
\nat length.
\n6.1 At the outset, it is required to be noted that notice under
\nSection 143(2) of the 1961 Act was sent by the Assessing Officer
\nto the assessee at the address as mentioned in the PAN database
\non 05.10.2007 and the same was within the time limit prescribed
\nin proviso to Section 143(2) of the 1961 Act. However, it was the
\ncase on behalf of the assessee that the said notice was not served
\nupon the assessee as the assessee changed its name and address
\nand shifted to new address prior thereto and therefore the said
\nnotice was not served upon the assessee and by the time when
\nsubsequently the notices were served upon the assessee, notice
\nunder Section 143(2) of the 1961 Act was barred by the period
\nprescribed in proviso to Section 143(2) of the 1961 Act and
\ntherefore the assessment order is bad in law. It was the case on
\nbehalf of the assessee that vide communication dated 06.12.2005
\nthe assessee intimated to the Assessing Officer about the new
\naddress and despite the same the Assessing Officer sent the
\nnotice at the old address. However, it is required to be noted that
\nthe alleged communication dated 06.12.2005 is not forthcoming.
\nNeither the same was produced before the Assessing Officer nor
\n9
\neven the same has been produced before this Court. In the
\naffidavit also, filed in compliance with order dated 21.08.2019,
\nthe assessee has stated that the alleged communication dated
\n06.12.2005 is not available. Thus, the assessee has failed to
\nprove the alleged communication dated 06.12.2005. The only
\ndocument available is Form No.18 filed with the ROC. Filing of
\nForm18
\nwith the ROC cannot be said to be an intimation to the
\nAssessing Officer with respect to intimation of change in address.
\nIt appears that no application was made by the assessee to
\nchange the address in the PAN data base and in the PAN
\ndatabase the old address continued. Therefore, in absence of any
\nintimation to the Assessing Officer with respect to change in
\naddress, the Assessing Officer was justified in issuing the notice
\nat the address available as per the PAN database. Therefore, the
\nAssessing Officer cannot be said to have committed any error and
\nin fact the Assessing Officer was justified in sending the notice at
\nthe address as per the PAN database. If that is so, the notice
\ndated 05.10.2007 can be said to be within the period prescribed
\nin proviso to Section 143(2) of the 1961 Act. Once the notice is
\nissued within the period prescribed as per the proviso to Section
\n143(2) of the Act, the same can be said to be sufficient
\n10
\ncompliance of Section 143(2) of the 1961 Act. Once the notice is
\nsent within the period prescribed in the proviso to Section 143(2)
\nof the 1961 Act, in that case, actual service of the notice upon
\nthe assessee thereafter would be immaterial. In a given case, it
\nmay happen that though the notice is sent within the period
\nprescribed, the assessee may avoid actual service of the notice till
\nthe period prescribed expired. Even in the relied upon case by
\nthe learned Senior Advocate for the assessee in the case of Hotel
\nBlue Moon (supra), it is observed that the Assessing Officer must
\nnecessarily issue notice under Section 143(2) of the 1961 Act
\nwithin the time prescribed in the proviso to Section 143(2) of the
\n1961 Act. Therefore, in the facts and circumstances of the case,
\nthe High Court is not justified in dismissing the appeal and
\nconfirming the orders passed by the learned C.I.T (Appeals) and
\nthe I.T.A.T. setting aside the assessment order solely on the
\nground that the assessment order is bad in law on the ground
\nthat subsequent service of notice upon the assessee under
\nSection 143(2) of the 1961 Act was beyond the time prescribed in
\nthe proviso to Section 143(2) of the 1961 Act.
\n7. Now so far as the observations made by the High Court
\nwhile concurring with the view of the learned Tribunal that
\n11
\nmerely by filing of return of income with the new address, it shall
\nbe enough for the assessee to discharge its legal responsibility for
\nobserving proper procedural steps as per the Companies Act and
\nthe Income Tax Act is concerned, we are of the opinion that mere
\nmentioning of the new address in the return of income without
\nspecifically intimating the Assessing Officer with respect to
\nchange of address and without getting the PAN database
\nchanged, is not enough and sufficient. In absence of any specific
\nintimation to the Assessing Officer with respect to change in
\naddress and\/or change in the name of the assessee, the
\nAssessing Officer would be justified in sending the notice at the
\navailable address mentioned in the PAN database of the assessee,
\nmore particularly when the return has been filed under EModule
\nscheme. It is required to be noted that notices under Section
\n143(2) of the 1961 Act are issued on selection of case generated
\nunder automated system of the Department which picks up the
\naddress of the assessee from the database of the PAN. Therefore,
\nthe change of address in the database of PAN is must, in case of
\nchange in the name of the company and\/or any change in the
\nregistered office or the corporate office and the same has to be
\nintimated to the Registrar of Companies in the prescribed format
\n12
\n(Form 18) and after completing with the said requirement, the
\nassessee is required to approach the Department with the copy of
\nthe said document and the assessee is also required to make an
\napplication for change of address in the departmental database of
\nPAN, which in the present case the assessee has failed to do so.
\n8. Now so far as the submission on behalf of the assessee that
\nwith respect to the Assessment Years 200405
\nand 200506,
\ncommunications and the assessment orders were sent at the new
\naddress and therefore the Assessing Officer was in the knowledge
\nof the new address is concerned, the same has been sufficiently
\nexplained by the Revenue.
\n9. In view of our findings, recorded hereinabove, the impugned
\njudgment and order passed by the High Court as well as the
\norders passed by the learned C.I.T (Appeals) and the I.T.A.T
\nholding the assessment order bad in law on the aforesaid ground
\ncannot be sustained and the same deserve to be quashed and
\nset aside. As the learned C.I.T (Appeals) has not considered the
\nother grounds on merits and has not considered the appeal on
\nmerits, the matter is required to be remanded to the learned C.I.T
\n(Appeals) to consider the appeal on merits, in accordance with
\nlaw.
\n13
\n10. Accordingly, the present Appeal is Allowed. The Impugned
\nJudgment and Order passed by the High Court as well as the
\norders passed by the C.I.T (Appeals) and the I.T.A.T are hereby
\nquashed and set aside. The matter is remanded to the learned
\nC.I.T (Appeals) to consider the Appeal on merits on other
\ngrounds, in accordance with law. No costs.
\n\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.J.
\n[UDAY UMESH LALIT]
\n\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.J.
\n[INDIRA BANERJEE]
\nNEW DELHI; \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.J.
\nOCTOBER 18, 2019. [M.R. SHAH]
\n14<\/p>\n","protected":false},"excerpt":{"rendered":"
It is required to be noted that notices under Section 143(2) of the 1961 Act are issued on selection of case generated under automated system of the Department which picks up the address of the assessee from the database of the PAN. Therefore, the change of address in the database of PAN is must, in case of change in the name of the company and\/or any change in the registered office or the corporate office and the same has to be intimated to the Registrar of Companies in the prescribed format 12 (Form 18) and after completing with the said requirement, the assessee is required to approach the Department with the copy of the said document and the assessee is also required to make an application for change of address in the departmental database of PAN, which in the present case the assessee has failed to do so.<\/p>\n