Akil Kureshi, J. - Since facts are common in both these petitions, we may notice the facts as emerging from the record of Special Civil Application No. 2552 of 2016.
2. The petitioner has challenged the process of re-opening of the assessment by the respondent-Assessing Officer for the assessment year 2008-09. The sole ground pressed in service is of non-service of notice of re-opening.
3. Brief facts are as under:
The petitioner had filed return of income for the assessment year 2008-09 which was scrutinized before the Assessing Officer passed a scrutiny assessment order. To re-open such assessment, the Assessing Officer issued notice dated 24.03.2015. As per the petitioner, such notice was never served on the petitioner within the time envisaged under Section 149 of the Income Tax Act, 1961 for issuance and service of such notice.
4. Case of the petitioner is that, the department never served the notice as per rules. The petitioner would point out that according to the department, such notice was served on 27.03.2015 received by one Krishna Yadav whereas the petitioner has no connection with any such person by such name. The petitioner also points out that according to the department, such notice was returned by the postal department with endorsement "the addressee left". According to the petitioner, thus, there is clear contradiction in the stand of the department. If according to the department, such notice had already been served on Krishna Yadav at the site, the assertion that the notice returned unserved is incongruent.
5. Learned counsel Mr. R.K.Patel took us through voluminous materials on record to contend that there was no due service of notice. Only on this ground, the proceedings must fail. He submitted that the petitioner had no connection with said Krishna Yadav. At any rate, he was not an authorized agent of the petitioner and, any service on Krishna Yadav would not be a proper service to the petitioner. Counsel further submitted that the notice was dispatched at a wrong address through postal department and, in any case, on the given address, the petitioner had received number of notices and that the endorsement of the postal department that the "petitioner had left" was totally incorrect.
6. On the other hand, the department contends that the notice was first sought to be served in person at the given address of the assessee where one Krishna Yadav was present and received the same on 27.03.2015. However, to ensure proper service through postal department, notice was also dispatched through post on 26.03.2015 at the address of the assessee, contained in his PAN card, which was returned back by the postal department on 31.03.2015 with remarks "left".
7. Having heard learned counsel for the parties and having perused the documents on record, we notice that the department has not been able to point out, in what manner said Krishna Yadav, the person who supposed to have received the notice on 27.03.2015, had any authority to do so for and on behalf of the petitioner. It is not stated that Krishna Yadav was an authorized agent of the petitioner, authorized to receive such communication and notice. To this limited extent, therefore, the attempt on part of the department to serve notice must fail.
8. The subsequent question pertains to the service of notice through the postal department. For whatever reason, having attempted to serve the notice through personal delivery, the department had also sent notice through postal dispatch and such notice was duly served or deemed to have been served, surely, the petitioner cannot argue that the entire proceedings must fail. In this context, we may notice that in the objections that the petitioner raised to the notice of reopening, under communication dated 01.02.2016 he had contended that, in the return of income for the assessment year 2008-09 he had given his address as "27, Saritkunj Society, inside Sardar Kunj, Shahpur, Ahmedabad 380001". In the order of assessment also same address was recorded. However, the notice was dispatched at the address "Shri Atulbhai Hiralal Shah, 17, Haveli Appartments, Panchwati Park Society, Ambawadi, Ahmedabad". According to the assessee thus, the notice was dispatched at a wrong address.
9. In the writ petition, the petitioner had taken a contention that Krishna Yadav is unknown to the petitioner and, therefore, notice could not have been received by him. It is simultaneously contended that the assertion of the department that the notice returned unserved is self contradictory.
10. The department appeared and filed reply, in which, it was pointed out that in addition to personal service to the person present at the premises viz. Krishna Yadav, who received it on 27.03.2015, the department had also dispatched the notice through the postal department on 26.03.2015 which was returned by the department on 31.03.2015 with the remarks "left". Regarding the address, it was pointed out that the same was taken from the PAN card of the petitioner.
11. In response to such stand of the department, in the affidavit-in- rejoinder the petitioner did not elaborate on the question of wrong address in the postal dispatch instead, contended that the endorsement "left" is totally incorrect since the petitioner had received various communications including from that of the department at the said address of 17, Haveli Appartments, Panchwati Park Society, Ambawadi, Ahmedabad.
12. The issue, therefore, can be narrowed down. It had come on record that the department had sent the notice for service to the petitioner through postal department on 26.03.2015 which was duly returned by the department with a remark "left". The question of wrong address is virtually given-up by the petitioner. In fact, the petitioner contends that at that very address, the petitioner has received multiple communications and, therefore, the endorsement "left" was totally wrong. For multiple reasons, the stand of the petitioner cannot be accepted.
Firstly, as noted, the postal dispatch has nothing to do with attempted personal service by the department. Secondly, the petitioner does not dispute that the notice was in fact, dispatched through the postal department on or around 26.03.2015. Thirdly, the petitioner does not at least now dispute the correctness of the address. Lastly, the petitioner has not joined the postal department to question why and under what circumstances, the remarks "left" was made. So far as the Income Tax department is concerned, it was entitled to proceed on the basis of official remark of the Government of India Department that the service could not be effected since the addressee had left the place.
13. Only on the ground of non-issuance of service of notice, we are not inclined to terminate the reopening proceedings since no other contention regarding the validity of the notice was raised.
The petitions are dismissed.