Delhi H.C : whether any notice under s. 143(2) of the IT Act as mentioned in the order-sheet of the case was issued to the assessee or not

High Court Of Delhi

CIT vs. CPR Capital Services Ltd.

Section 143(2)

A.K. Sikri & Suresh Kait, JJ.

IT Appeal No. 15 of 2009

29th October, 2010

Counsel Appeared :

Ms. Sonia Mathur, for the Appellant : Dr. Rakesh Gupta with Johnson Bara, for the Respondent

JUDGMENT

By the court :

Learned counsel for the appellant states that in compliance with the order of this Court dt. 5th Oct., 2010, affidavit is prepared and would be filed during the course of the day. The affidavit is sworn by Mr. Vijay Sharma, CIT-I, New Delhi.

It is stated that the matter was looked into and enquiry was conducted to ascertain whether any notice under s. 143(2) of the IT 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 despatch 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 despatch register or speed-post list separately evidencing the despatch of the notice is not available. Mere noting in the order-sheet would not suffice, in as much as, even the copy of the purported notice issued under s. 143(2) of the Act is not available on record. Moreover, even when in the assessment proceedings of 24th Sept., 2001, it is recorded that notice under s. 142(1) as well as s. 143(2) of the Act along with questionnaire was issued; in the very next proceedings dt. 3rd Nov., 2001, it is mentioned that reply of the assessee is in response to notice under s. 142(1) of the Act only and there is no reference to notice under s. 143(2) of the Act. It was under these circumstances, orders dt. 5th Oct., 2010 were passed to see as to whether any notice under 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 under 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 despatch register, etc., to show that such notice was despatched 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 under 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.

[Citation : 330 ITR 43]

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