The order of the Bench was delivered by
1. B. P. Jain (Accountant Member).-This appeal of the assessee arises from the order of the learned Commissioner of Income-tax (Appeals)-II, Bhubaneswar dated March 25, 2013 for the assessment year 2009-10.
2. Although the assessee has raised various grounds, however, learned counsel for the assessee has pressed ground Nos. (a) and (b) for adjudication, which are as under :
"(a) For that the orders of the forums below are illegal, unjust and excessive in the facts of the case and liable to be quashed.
(b) For that non-service of notices under sections 143(2) and 142(1) is highly illegal and the alleged service by the respondent purported to have been made on one Pinaki Prasad Swain is neither known related to the appellant nor was authorised and even chance of cross- examination not made to find out the veracity and genuineness of proper service of notices if any made at all and non-service of stat utory notice shall entail the violation of the provisions of the statute and proceeded for quashing of the illegal order made by the forum below. Therefore, in the ground No. 2 raised the issues should have been considered."
3. The brief facts of the case as pointed out by learned counsel for the assessee from the order of the learned Commissioner of Income-tax (Appeals) in para 4.1., for the sake of convenience, is reproduced hereinbelow :
"In regard to this procedural objection, as stated hereinabove, the assessment records have been examined and have been confronted to the authorised representative of the appellant Sri B. B. Sahu, advocate on March 20, 2013 (as per his signature on the order sheet of the appellate record). He has already noted that notice under section 143(2) dated September 27, 2010 was issued to the address which was furnished in the return of income (no subsequent change was intimated by the appellant) and it was served on the person who was regularly available on such address namely Sri Pinaki Prasad Swain. Subsequent facts prove that this notice was duly handed over to the appellant who in turn had authorised his authorised representative for necessary compliance to the notice. Accordingly, the authorised representative had appeared before the Assessing Officer) on February 2, 2011. He had filed a "Hazira" on that date stating that the petitioner was present before the Deputy Commissioner of Income-tax, Circle-2(2), Bhubaneswar on that day through his authorised representative for hearing of the assessment year 2009-10 "in response to notice dated September 27, 2010". This clearly establishes that whether or not the original service of the notice was on the proper person became irrelevant, because eventually the notice had reached the appellant and the appellant had responded to the notice by appearing before, the Assessing Officer. Subsequently, notings on the order sheet of the Assessing Officer dated September 5, 2011, September 13, 2011, September 22, 2011, October 13, 2011 and October 21, 2011 substantially prove that the authorised representative of the appellant had appeared before the Assessing Officer from time to time and sufficient oppor tunities had been given to the appellant to explain his case.
In view of the above, I am not inclined to accept that statutory notices were not served and the appellant was deprived of natural justice before completion of the assessment."
4. The learned Commissioner of Income-tax (Appeals) rejected the legal ground raised by the assessee, as reproduced above.
5. Learned counsel for the assessee argued that the service of notice has been made to a wrong person, who is not known to the assessee and, therefore, the assessment so made is illegal and bad in the eyes of law. He argued that Sri Pinaki Prasad Swain is not known to the assessee or the authorised representative of the assessee and, therefore, serving of notice on a wrong person and even appearance by the assessee at a later stage when service of notice became time barred, the illegal service cannot be made a legal one and, therefore, the assessment has to be held as nullity.
6. On the other hand, the learned authorised representative relied upon the orders of the authorities below.
7. Learned counsel for the assessee also relied upon the decision of the Income-tax Appellate Tribunal, Delhi Bench in Hind Book House v. ITO I. T. Appeal No. 1017 (Del) of 2000 assessment year 1996-97 [2005] 274 ITR (AT) 61 (Delhi) and the relevant part in para 8 of the said decision is reproduced hereinbelow (page 68) :
"8. In the present case, the notice purportedly served on the assessee-firm was neither served on any of its partners or its agent duly authorised to receive the said notice. As is evident from the record, the same was served on one Mr. A. Singh who was neither the agent of the assessee-firm duly authorised to receive the said notice on its behalf nor even its employee. The said person to whom the notice in question was claimed to be served and who had even acknowledged receipt of the same, was neither identified by the notice server nor delivering or tendering of the said notice to him was witnessed as required by rule 18 of Order V of the Code of Civil Procedure. Before the learned Commissioner of Income-tax (Appeals) as well as before us, the plea raised on behalf of the assessee-firm has been that the said notice was not received by it as claimed by the Revenue and it was, therefore, incumbent upon the Department to place on record the relevant material to establish that the service was made either on the assessee-firm itself or any of its partners or on somebody else duly authorised by it to receive such notice. The Revenue, however, has failed to discharge this onus that lay on it. Having regard to all these facts of the case and keeping in view the specific provisions of section 282 of the Income tax Act read with the relevant provisions of the Code of Civil Procedure as discussed hereinabove as well as the legal position emanating from the aforesaid judicial pronouncements, we are of the view that there was no valid service of notice on the assessee under section 143(2) within the time specified in the proviso to the said section and in the absence of compliance of the said statutory requirement, the assessment completed in pursuance of the said notice was void ab initio invalid. The same is, therefore, quashed allowing the appeal of the assessee."
8. In the circumstances and facts of the case, the service made on a wrong person who in fact is not related to the assessee either as an employee or an authorised-agent and, therefore, said service of notice is not valid in view of the provisions of section 282 of the Act and, therefore, notice so issued is void ab initio and the assessment so made is directed to be quashed. Hence, the ground of appeal raised by the assessee is allowed.
9. In the result, the appeal filed by the assessee is allowed.
The order pronounced in the open court on this May 26, 2015.