Delhi High Court
Commissioner Of Income Tax vs Dr. K.C. Verma on 27 May, 2003
Equivalent citations: (2003) 185 CTR Del 231, 2004 266 ITR 476 Delhi
Author: D Jain
Bench: D Jain, M B Lokur
JUDGMENT
D.K. Jain, J.
1. CM Nos. 45, 47, 49 & 50/2003
For the reasons stated in the applications, delay in re-filing the appeals is condoned.
The applications stand disposed of.
CM Nos. 44, 46 & 48/2003
Allowed subject to all just exceptions.
The applications stand disposed of.
ITA Nos. 98 to 101/2003
These four appeals by the Revenue under Section 260A of the IT Act, 1961 (for short 'the Act'), are directed against a common order dt. 29th May, 2002, passed by the Income-tax Appellate Tribunal, Delhi Bench SMC-I, New Delhi (for short 'the Tribunal') in ITA Nos. 4379-4381 & 4660/Del/2000, pertaining to the asst. yrs. 1992-93 to 1995-96.
2. Since the issue sought to be raised by the Revenue in all the four appeals is identical, these are being disposed of by this common order.
3. Background facts giving rise to the appeals are as follows :
The respondent/assessed is a Dermatologist. Since returns of income for the said assessment years were filed by him after the expiry of the due dates, notices under Section 148 were issued to him on 23rd March, 1998, to regularise the returns.
Subsequently, assessment proceedings in respect of the said assessment years are claimed to have been initiated by issuing a notice under Section 142(1) of the Act on 1st March, 2000, which, according to the AO, was not responded to, Another notice is stated to have been issued to the assessed on 23rd March, 2000. Such both the said notices were not responded to, best judgment assessments in respect of all the four assessment years were framed under Section 144 of the Act, on the basis of the material available on record.
Aggrieved by the additions made by the AO to the returned income, the assessed preferred appeals to the CIT(A). One of the grounds urged before the appellate authority was that since the assessed had not received any notice under Section 142(1) of the Act, the assessment orders passed under Section 144 of the Act, were illegal. The CIT(A), did not agree with the assessed on the question of service of notice under Section 142(1) of the Act, but he deleted the additions made by the AO to the income returned. Being aggrieved, the assessed carried the matter in further appeal to the Tribunal By the impugned order, the Tribunal has come to the conclusion that no notice under Section 142(1) of the Act was served on the assessed and, therefore, the assessment order passed under Section 144 was unsustainable. While holding so, the Tribunal has observed that the service of first notice by affixture was bad inasmuch as the procedure prescribed for effecting service by affixture was not followed by the AO and as regards the second notice, nothing was brought on record to show that it was served on the assessed. Hence, the present appeals.
4. We have heard Ms. Premlata Bansal, learned senior standing counsel for the Revenue. Learned counsel while candidly admitting that service of first notice by affixture was not strictly in accordance with the procedure prescribed in the CPC, submits that the second notice was served on the assessed through a process server, who presumably had given a report that he had served the same on the assessed. On a pointed query by the Court as to what exactly was the report of the process server, learned counsel expresses her ignorance about it. Learned counsel is unable to produce any evidence to show that any notice was, in fact, served on the assessed.
5. In this view of the matter, the finding recorded by the Tribunal to the effect that there was no service of notice on the assessed before completing the assessments cannot be faulted with. The said, finding is essentially a finding of fact giving rise to no question of law, much less a substantial question of law.
6. Since no case for interference with the finding of the Tribunal on the issue of service of notice is made out, we deem it unnecessary to deal with the other issue raised by the Revenue with regard to the question of limitation in issuing notice under Section 142(1) of the Act.
7. For the foregoing reasons, we decline to entertain the appeals and the same are, accordingly, dismissed.
