High Court Of Rajasthan
Gajendra Singh vs. CIT
Section 143(2), 144A, 142(1)
Asst. Year 2005-06
ARUN MISHRA, CJ & PRASHANT KUMAR AGARWAL, J
D. B. ITA No. 583 of 2011
2nd February, 2012
Counsel Appeared
Manoj Bharadwaj for the Appellant.
JUDGEMENT
Heard on the question of admission.
The appeal has been preferred as against the order dated April 28, 2011, passed by the Incometax Appellate Tribunal, Jaipur Bench, Jaipur, dismissing the appeal and as against the order of the Commissioner of Income-tax (Appeals), Alwar, dismissing the appeal, vide order dated October 12, 2010. Two questions are raised in the appeal that notice under section 143(2) of the Income-tax Act, 1961, has not been served upon the appellant within the prescribed period of limitation, secondly, the Commissioner of Income-tax (Appeals) has erred in confirming the assessment in the wrong status of association of persons, i.e., AOP, while the assessee should have been assessed in the capacity of partnership firm. Return was filed for the assessment year 2005-06 on February24, 2006. The Assessing Officer has mentioned in the assessment order that notice under section 143(2) was issued on February 27, 2007, and hearing was fixed for March 21, 2007. In compliance with the notice, Shri Rajeev Goyal, authorised representative, attended the proceedings and the case was adjourned sine die. Subsequently, notices were issued but the assessee has sought adjournments on one excuse or the other. Several opportunities were granted on October 16, 2007, October 23, 2007, November 12, 2007, November 27, 2007, and November 29, 2007. The assessee has filed an application before the Additional Commissioner of Income-tax, Bharatpur, for directing the Assessing Officer to drop the proceedings as notice under section 143(2) was not served within the time limit provided under the Act. It was found by the Additional Commissioner of Income-tax, Bharatpur, that notice was served upon Ms. Anita on the address provided in the return hence, the application was rejected. An application under section 144A was also filed against the order of the Additional Commissioner of Income-tax, Bharatpur, but that too was also rejected. The Assessing Officer thereafter passed assessment order because the assessee has not complied with the notices issued under section 142 (1) of the Income-tax Act. The Commissioner of Income-tax (Appeals) has affirmed the order as well as the Income-tax Appellate Tribunal. Aggrieved thereby the instant appeal has been preferred.
Shri Manoj Bharadwaj, learned counsel appearing on behalf of the appellant, has submitted that notice was not served upon it under section 143(2) of the Income-tax Act. It is also submitted that assessment could not have been made in the capacity of AOP (association of persons), but it should have been made in the capacity of partnership firm.
With respect to the assessment being made in the capacity of association of persons, discussion has been made by the Commissioner of Income-tax (Appeals) that certified copy of the partnership deed was required to be filed along with the return, which was not filed. A copy of the partnership deed, which was filed, was only certified by one partner only. The assessee has also failed to file original partnership deed for verification, therefore, the status of firm could not have been granted to the assessee and assessment as association of persons could not be said to be illegal in the facts and circumstances of the case. The reasons given are proper.
With respect to the service of the notice, findings have been recorded by the Commissioner of Income-tax (Appeals), Bharatpur, that the notice under section 143(2) of the Income-tax Act was duly served upon Ms. Anita and application filed under section 144A of the Income-tax Act that proceeding was barred by limitation, was rejected. Therefore, the Assessing Officer has passed the assessment order. The reasonings have been given by the Income-tax Appellate Tribunal discussing that notices have been in fact served within the period of limitation. The-Income-tax Appellate. Tribunal has given the following reasons:- “We have heard both the parties. The return of income was filed on February 24, 2006, and, therefore, notice under section 143(2) was to be served on or before February 28-2007. Notice under section 143(2) has been issued on February 27, 2007, and, therefore, such notice could not have been, served before February 28, 2007, by registered post. The Assessing Officer, therefore, utilised the services of the notice server for getting the notice served. The notice server has been given a report has been served on Smt. Anita backside of the notice contains the names of the all the partners. The assessment record shows that the Assessing Officer has issued notice under section 143(2) on May 28, 2007, and this notice stands received by Shri Rajeev Goyal, who filed adjournment application dated October 31, 2006, in which it was stated that the hearing be adjourned for one month (perhaps the date and year typed may be wrong). Shri Rajeev Goyal, vide letter dated October 16, 2007, raised the plea for the first time that no notice under section 143(2) has been issued within the period of twelve months. In this letter Sh. Rajeev Goyal has referred to the notices dated September 28, 2007, and October 16, 2007. There is a period between the receipt of the notice taken by Sh. Rajeev Goyal as on June 7, 2007, and making a request that notice under section 143(2) has not been issued within the limitation period and such gap of period has not been explained. As per the order-sheet entry, Sh. Rajeev Goyal has attended the proceedings as on October 11, 2007, as his signature are available on the order- sheet. We have noticed from the assessment record that Smt. Anita has accepted the registered letter issued by the Department in the name of the asses-see-firm. The order-sheet also shows that Shri Rajeev Goyal has attended the proceedings before the Assessing Officer as and when notices are issued. It is not the case of the assessee that an affidavit of Shri Rajeev Goyal has been filed to show that the entries in the order-sheet, which is the Government record have been manipulated. There is no evidence to show that Smt. Anita has not accepted the notice on behalf of the firm vakalatnama in the name of Shri Rajeev Goyal and J. N. Goyal it is also available on record.”
8. In view of the previous orders passed by the Commissioner of Income-tax (Appeals) and the impugned order passed by the Income-tax Appellate Tribunal, we are satisfied that the notice has been served within the limitation. The findings recorded by the Assessing Officer and the Commissioner, of Income-tax (Appeals) as well as the Income-tax Appellate Tribunal cannot be said to be illegal or perverse. The application filed by the assessee before the Additional Commissioner of Income-tax, Bharatpur, had also been rejected because notice under section 143 (2) was served within the limitation.
9. No substantial question of law arises in the instant appeal hence, the same is dismissed.
[Citation : 345 ITR 541]
