September 2008
S. 143(2) — Service of notice by Speed Post, in absence of material on record, no pre-sumption of service within 24 hours
By K. B. Bhujle, Advocate
New Page 2
II. Reported :
52 Notice : Service by Speed Post : No
presumption of service within 24 hours : Notice u/s.143(2) dated 29-10-2002 sent
by Speed Post on 30-10-2002 at Delhi address given in the return and redirected
and served at Noida address of assessee on 6-11-2002 : No presumption that the
notice was served at the former address on or before 31-10-2002 in the absence
of material on record.
[Nulon India Ltd v. ITO, 216 CTR 142 (Del.)]
Pursuant to the return of income filed by the assessee on
31-10-2001, the Assessing Officer issued notice u/s.143(2) of the Income-tax
Act, 1961 on 29-10-2002, which was sent through Speed Post on 30-10-2002 at
Delhi address mentioned in the return. The notice was redirected and was served
at the Noida address of the assessee on 6-11-2002. The assessee challenged the
validity of the assessment order passed pursuant to the said notice, on the
ground that the notice was not served within the prescribed period. The Tribunal
rejected the assessee’s claim.
On appeal by the assessee, the Delhi High Court reversed the
decision of the Tribunal and held :
“(i) As per material placed on record, the notice in
question has been dispatched on 30-10-2002 and thereafter it has been
redirected to the Noida address of the assessee. There is nothing on record to
show as to on which date this notice was received at the given address of the
assessee and on which date the same was redirected. As per the order of the
CIT(A) placed on record, the Assessing Officer was asked for comments and vide
his letter dated 12/20th October, 2004, the Assessing Officer stated : “The
notice was served by Speed Post which must be delivered to the assessee within
24 hours, that is, by morning of 31st October.” So the AO is also not sure nor
specific as to when the notice in question has been served upon the assessee.
It is only a presumption that notice which has been sent by Speed Post on 30th
October 2002, must have been delivered to the assessee by 31st October 2002.
(ii) There is no presumption under law that any notice sent
by Speed Post must have been delivered to the assessee within 24 hours.
Moreover, there is nothing on record to show at whose instance the notice was
redirected and sent at the address of Noida. So, from the material available
on record, it may be concluded that no notice u/s.143(2), which is mandatory
requirement of law, has been served upon the assessee within prescribed
period.
(iii) Under the circumstances, the appeal filed by the
assessee is allowed and the impugned order passed by the Tribunal is set
aside.”
