HIGH COURT OF
Commissioner of
Income-tax-III,
v.
Silver Streak
Trading (P) Ltd.
MADAN B. LOKUR AND
V.B. GUPTA, JJ.
IT APPEAL NO. 1237
OF 2007
January 2, 2008
Section 143 of the Income-tax Act, 1961 - Assessment - Issue of notice
- Assessment year 1997-98 - For relevant year, assessee filed return of income
on 30-11-1997 - As per Assessing Officer, notice under section 143(2) was
issued to assessee on 28-11-1998, fixing case for hearing on 8-12-1998 but,
since no one appeared on behalf of assessee, no proceedings could take place,
thereafter, by issuing another notice on 21-10-1999, he completed assessment
under section 144 - However, assessee had filed an affidavit before Assessing
Officer stating that it had not received any notice prior to notice dated
21-10-1999 - In spite of said affidavit, no steps were taken by Assessing
Officer to ascertain whether in fact notice dated 28-11-1998, was served on
assessee or not and what steps, if any had been taken to ascertain factual
position on or immediately after 8-12-1998 when no one appeared on behalf of
assessee before Assessing Officer - Therefore, Tribunal held that only notice
which assessee received was one dated 21-10-1999 and it was, in fact, served
beyond time prescribed by law -Whether on facts, onus was clearly upon revenue
to show that notice dated 28-11-1998 was, in fact, served on assessee and it
having failed to discharge said onus, no substantial question of law arose from
order of Tribunal - Held, yes
CIT v. Shankar Lal Ved Prakash [IT Appeal No. 1455 of 2006 decided on 6-11-2006] distinguished on facts.