![\"\"](\"https:\/\/www.itatonline.org\/articles_new\/wp-content\/uploads\/CA-DEV-KUMAR-KOTHARI.jpg\")
<\/p>\n<\/p>\n
In ITO vs. Dharam Narain<\/a>, the Supreme Court has held that if the assessee is not available to take service of the s. 143(2) notice, service on the authorized representative is sufficient to draw inference of deemed service of notice on the assessee. It was also held that the fact that the authorized representative is disowned by the assessee is irrelevant. CA Dev Kumar Kothari has carefully analyzed the judgement. He argues that the judgement is wrong and requires reconsideration. He has made good his assertion by giving detailed reasons <\/strong> <\/p>\n From above discussion it appears that the judgment of the Supreme Court in case of Dharam Narain is not in accordance with earlier judgments. Furthermore, there seems no actual and effective representation by Advocates of any side. Therefore, this is a fit case for review of the judgment. <\/p>\n Assesse should have adopted regular course of assessment and appeal:<\/p>\n It seems that assessee by adopting route of Writ Petition challenging the initiation of assessment proceedings on ground of time barred service of notice had to suffer by adverse judgment of the Supreme Court. By not being available to receive service and without documentarily establishing unavailability.<\/p>\n When notice by Registered post was sent and it was presented at his address, then why he (or in his absence any family member) did not receive notice, appears to raise finger that he deliberately avoided service of notice. But that itself will not be reason to consider deemed service as service as held by the Supreme Court because, revenue could have served notice at his business place or could have made service by affixture of notice on his permanent address.<\/p>\n Why he disown the authority of alleged A\/R should have been made clear with reasoning before High Court. If the authority was for any other matter or any other year, then he should have made it clear.<\/p>\n If authority to receive notice was not at all given or given but withdrawn, it should have been made clear at first stage that is in the Writ Petition before the High Court.<\/p>\n In this case when notice was served on A\/R within limitation, and served on assesse after limitation, these grounds could be raised during assessment and normal appeal proceedings. <\/p>\n\n
\n From the judgment in case of Dharam Narian: <\/td>\n Observations of author <\/td>\n<\/tr>\n \n The materials on record indicate that on two occasions the notice sent by registered post could not be served on the respondent – Assesse as he was not available and that it was served on the authorized representative of the respondent – Assessee on 19th October, 2006. <\/td>\n As discussed earlier, as per usual practice followed, it is not very likely that any authority to receive notice was given by assesse before he received notice u\/s 143.2. It is likely that revenue has produced authority for another year.
\n When assessee had denied existence of any A\/R, it was important to examine the authority provided and its validity. <\/td>\n<\/tr>\n\n In the Rejoinder Affidavit filed by the petitioner it has been denied that Sri Safdar Husain Advocate was the authorized representative duly authorized by the petitioner to receive the notice. <\/td>\n There is no contention or argument on this issue as to how Sri Safdar Husain Advocate was authorised or how was he not authorised as contended by assessee. This was crucial aspect and there should have been debate on this issue.
\n Why the assesse had denied, why such denial was considered by the High Court but has not been accepted by the Supreme Court.
\n As discussed earlier, as per usual practice followed, it is not very likely that an authority to receive notice was given by assesse before he received notice u\/s 143.2. A question also arise, whether an authority can be given when there is no case in process?
\n There is no mention about authority – when it was given by assesse and delivered to the AO? Whether, such authority was in force or not when notice was served on A\/R etc. <\/td>\n<\/tr>\n\n The question, therefore, that arises in the writ petition was whether in such circumstances the requirement under Section 143(2) of the Income Tax Act, 1961 was met by the Revenue. The High Court answered the question in the negative taking the view that what is required to be satisfied by the Revenue is service of notice and not mere issuance thereof. <\/td>\n In fact High Court has considered that the notice was not service on assesse within prescribed limitation. The service on A\/R was not service as per law. Furthermore the assesse has denied authority of alleged A\/R. This has not been considered by the honourable Supreme court. <\/td>\n<\/tr>\n \n It will not be necessary for us to decide the aforesaid question in the present case which is being kept open for decision in an appropriate case.<\/em> We have taken the aforesaid view as the present case is capable of being resolved on its own peculiar facts. <\/td>\n The judgments of the Supreme Court in case of Blue Moon Hotel and Sahara (supra.) were followed by the High Court. That has not at all been mentioned and considered which was necessary as it has been decided that service of notice on assesse is a necessary precondition<\/u> to assume jurisdiction for making assessment u\/s 143.3. The question was settled in case of Hotel Blue Moon, which has not been considered at all, as appears on reading of judgment. <\/td>\n<\/tr>\n \n The non-availability of the respondent – Assessee to receive the notice sent by registered post as many as on two occasions and service of notice on 19th October, 2006 on the authorized representative of the respondent Assessee whom the respondent Assessee now disowns, in our considered view, is sufficient to draw an inference of deemed service of notice on the respondent – Assessee and sufficient compliance of the requirement of Section 143(2) of the Income Tax Act, 1961. <\/td>\n Whether service of notice on A\/R would meet legal requirement? Is an important issue. Why the notice was not served on assesse? is also an important issue.
\n Why the notice could not be served on premises of assesse is also an important issue.
\n Whether an inference of deemed service can be drawn? Whether deemed service is proper?
\n When assesse had a permanent address, and another business address, why notice was not served on assesse on any of such addresses, is an important issue. This was necessary to be looked into, particularly when assesse had, before the High Court, denied authority of A\/R on whom notice has been claimed to be served by revenue. <\/td>\n<\/tr>\n\n <\/td>\n <\/td>\n<\/tr>\n<\/table>\n \n
\n Disclaimer: <\/strong>The contents of this document are solely for informational purpose. It does not constitute professional advice or a formal recommendation. While due care has been taken in preparing this document, the existence of mistakes and omissions herein is not ruled out. Neither the author nor itatonline.org and its affiliates accepts any liabilities for any loss or damage of any kind arising out of any inaccurate or incomplete information in this document nor for any actions taken in reliance thereon. No part of this document should be distributed or copied (except for personal, non-commercial use) without express written permission of itatonline.org<\/td>\n<\/tr>\n<\/table>\n","protected":false},"excerpt":{"rendered":"