Shri Abhishek Acharya Vs ITO (ITAT Mumbai)
The issue under consideration is whether the assessment order passed without serving of the notice u/s 143(2) on correct address as mentioned in ITR is considered as Valid order?
ITAT states that, the undisputed facts are that the notice under section 143(2) was not served on the assessee as is apparent from the reply of the AO in response to the RTI application dated 05.10.2018, ITAT observe from the perusal of the said application that the notice has not been served on the assessee. In our opinion, the non service of notice is factual and serous defects in the framing of the assessment and renders the assessment proceedings as well as the consequent assessment order as null and void. The ld CIT(A) instead of finding the truth chose to dismiss the appeal even without verifying the facts from assessment records. In the present case before us the AO admitted to have not served the notice under section 143(2) on the assessee and in such a scenario we are left with no option except to quash the assessment order. Where the notice under section 143(2) has not been served at the correct address then the assessment proceedings concluded on the basis of invalid notice is void. Hence, since no notice under section 143(2) was ever issued by the Department, therefore, the assessment proceedings sans service of notice under section 143(2) of the Act are invalid and accordingly quashed.
FULL TEXT OF THE ITAT JUDGEMENT
The present appeal has been preferred by the assessee against the order dated 21.08.2018 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2002-03.
2. The only issue raised in ground No.2 & 3 is against the non service of notice under section 143(2) of the Act on the assessee and challenging the jurisdiction of the AO to frame assessment under section 143(3) of the Act. The assessee has challenged the order of Ld. CIT(A) for not quashing the assessment order passed under section 143(3) on the ground that there has been no service of notice under section 143(2) of the Act.
3. The facts in brief are that the notice under section 143(2) of the Act was issued and sent on the address 710, Everest, J.P. Road, Andheri (West), Mumbai on 29.10.2003. However, the said notice was returned unserved. The assessee, in the return of income filed, has stated the address as E-202, Serenity of New Link Road, Oshiwara, Andheri (West), Mumbai 400 053 and thus the notice has been sent on the wrong address. Thereafter, no attempt was made by the AO to send the notice on the correct address and finally the assessment under section 143(3) of the Act was framed vide order dated 31.03.2005.
4. In the appellate proceedings, the Ld. CIT(A) did not adjudicate this ground of appeal and dismissed the appeal of the assessee in limine on account of non condonation of delay in filing the appeal. The learned CIT(A) has dismissed the appeal of the appellate by concluding that due to purely callous and negligent attitude of the appellant there is inexplicable and inordinate delay of more than 12 and a half years in filing the appeal and therefore it is not a fit case to condone the delay.
5. At the outset, the Ld. A.R. submitted before the Bench that the assessment has been framed by the AO without serving the mandatory notice under section 143(2) of the Act on the assessee despite the fact that the return as filed was with the correct address whereas the notice was sent on a wrong address. The Ld. A.R. stated that in response to RTI information sought by the assessee, the AO has responded that the notice under section 143(2) was sent on the address at 710, Everest, J.P. Road, Versova, Andheri (West), Mumbai whereas the correct was E-202,, Serenity , Off New Lind Road, Oshiwara , Andheri (West), Mumbai. The ld AO has taken this address from form 16A, a TDS certificate issued to the assessee by third party. Thus the Ld. A.R. submitted that this is undisputed that notice has not been served on the assessee. During the course of proceedings before the Tribunal, the AR drew our attention to the RTl reply received by the appellant from the Assessing Officer which is extracted is as under: –
