1970-VIL-342-ALH-DT

ALLAHABAD HIGH COURT

Income Tax Appeal No. 13 of 2020

Date: 01.01.1970

MANOJ KUMAR SHARMA

Vs

INCOME TAX OFFICER, WARD 2 (2) , UTTAR PRADESH

JUDGMENT

1. This appeal, under section 260A of the Income Tax Act, 1961, has been taken out in respect of a judgment and order of the learned Income Tax Appellate Tribunal, Delhi Bench (S.M.C.), New Delhi, dated 3rd October, 2019. The appellant has essentially tried to make out a case on two questions of law, which, according to the learned advocate appearing for the appellant, are substantial questions of law. The questions of law are as follows:

1. “Whether there was no service of notice under section 148 of the Income Tax Act, 1961 ?

2. Whether additional/fresh evidence was taken into consideration by the Commissioner of Income Tax (Appeals)I ?”

2. In our view, the two questions of law cannot be termed as “substantial questions of law”. The answer to the two questions, however, are clearly reflected in the order of the Commissioner of Income Tax (Appeals)I dated 11th May, 2018, wherefrom the appellant preferred an appeal before the learned Income Tax Appellate Tribunal, Delhi Bench (S.M.C.), New Delhi.

3. So far as the first question is concerned, the following paragraphs extracted from the order of the Commissioner of Income Tax (Appeals)-I will speak for itself:“

10. The appellant raised a ground that the address on which the notices were sent by the Ld. AO being “Manoj Kumar Sharma, Nai Abadi, Dadri, G.B. Nagar” was not the correct address as there could be more than one Manoj or Manoj Kumar or Manoj Kumar Sharma in Dadri and the post office might have ended up serving the notices of the Ld. AO to any one of those persons named Manoj. It was contended by the appellant that merely because the notices sent by the Ld. AO were not returned by the postal authorities it cannot be presumed that those notices stood served upon the appellant and the service of notice was complete in terms of the provisions of law. Based upon such logic, the appellant has contended that there was no service of notice u/s 148 and therefore, the impugned assessment order was bad in law and liable to be deleted.

11. The ground taken by the appellant stands negated by the admitted position of the appellant himself.

12. The appellant has stated in its reply to the report of the Ld. AO that the appellant came to know about the best judgment assessment in its case only when it received the notice u/s 274 of I.T. Act, 1961 asking it to show cause vide a penalty u/s 271(1)(c) of I.T. Act, 1961 be not imposed on the appellant. A copy of the said notice has been placed on the record of this office under self authentication by the appellant. It is seen that the said notice vide F. No. ITO/W2( 2)/Noida/271(1) (c)/201718 dated 04.05.2017 file F. No./PAN/229/148 was issued on the same address on which the Ld. AO has issued earlier notices, i.e., Manoj Kumar Sharma, Nai Abadi, Dadri, G.B. Nagar.

13. Once the postal authorities have duly served the notice issued by the Ld. AO upon the appellant on that address as on May, 2017 there can be no ground unless proved otherwise to assume that postal authorities would not have been able to serve the notices issued by the Ld. AO upon the appellant on that very address earlier, i.e., prior to the service of notice in May 2017. As none of the notices were returned by the postal authorities as unserved for want of complete or correct address the presumption of bonafide as obtaining in favour of the State would hold the ground. In any case, the appellant has received the notices sent by the Ld. AO on that same address as late as May 2017 and it cannot claim that the address was incorrect or incomplete.

14. Therefore, in view of the admission of the appellant the claim of the appellant that it did not receive the notices issued by the Ld. AO because of the address on which the said notices were sent by the Ld. AO was either incomplete or incorrect is not tenable.”

4. So far as the second question is concerned, the answer to the same is at paragraph 8 of the said order of the Commissioner of Income Tax (Appeals)I dated 11th May, 2018, which reads as follows:“

8. The Ld. AO by its report dated 26.03.2018 submitted its response to the fresh evidence of the appellant and rejected the same and recommended that the grounds raised by the appellant were neither maintainable nor acceptable in the eyes of the law and the appeal of the appellant deserved to be dismissed by this office.”

5. Both these issues were considered by the learned Tribunal while passing the judgment and order dated 3rd October, 2019, which is evident from a plain reading of paragraph 5 of the said judgment and order dated 3rd October, 2019. In order to avoid prolixity, we refrain from reproducing the same.

6. As stated hereinbefore, we do not find any substantial question(s) of law involved in this matter. Rather, the issues are essentially factual in nature. The appeal is, therefore, liable to be dismissed and stands dismissed accordingly.

 

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