By K. B. Bhujle Advocate
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CIT vs. Gita Rani Ghosh; 361 ITR 17 (Gau):
For the A. Y. 2002-03, the Assessing Officer passed best judgment assessment order u/s. 144 claiming that the assessee did not respond to the notices issued u/s. 143(2) and 142(1) of the Act. The assessee challenged the validity of the assessment order on the ground that no such notices were served on the assessee in respect of the assessment proceedings of the assessee for the relevant year. The Tribunal allowed the assessee’s appeal and held that the assessment order was illegal and void ab initio as no notice u/s. 143(2) or section 142(1) was served on the assessee. The Tribunal accordingly cancelled the assessment order.
On appeal by the Revenue, the Gauhati High Court upheld the decision of the Tribunal and held as under:
“i) It is settled law that to establish service of a notice upon the assessee, the initial onus is on the Revenue and unless and until this onus is discharged, the service of a notice simply, on the basis of presumption and assumption, cannot be accepted, so as to justify an ex parte best judgment assessment u/s. 144 of the Act.
ii) When the assessee had denied the receipt of the notices u/s. 142(1) and section 143(2) for the A. Y. 2002-03, it was for the Revenue to prove, by bring ing materials on record including witnesses, if any, that the notices sent to the assessee were for the A. Y. 2002-03. This was, however, not done.
iii) It was not the case that after the Assessing Officer had come to know of having issued notices in the wrong name, he had corrected the same by issuing a second set of notices. Similarly, the fact of service of notice had also not been mentioned in the order-sheet, meaning thereby that there was no evidence with the Revenue to establish its case that it was the second set of notices which were served upon the assessee as per acknowledgment.
iv) The Tribunal is correct in cancelling the best judgment assessment passed u/s. 144.”
