Income Tax

Non-service of notice-onus is on Revenue to demonstrate that notice was issued in accordance with law-ITAT

Non-service of notice-onus is on Revenue to demonstrate that notice was issued in accordance with law. Assessee cannot be asked to lead negative evidence-ITAT  

ABCAUS Case Law Citation:
ABCAUS 1117 (2017) (02) ITAT

Assessment Year : 2007-08

Date/Month of Pronouncement: February 2017

Brief Facts of the Case:
As per AIR information available with the tax authorities, it was noticed that the assessee had deposited an amount of Rs. 20 lakhs in cash on various dates in his Savings Bank Account in the year under consideration.

Accordingly, notice under section 148 of the Income Tax Act, 1961 was issued to the assessee after recording of reasons. In response thereto, the assessee filed its return of income. Subsequently notices u/s 143(2)/142(1) were issued alongwith questionnaire etc. and finally rejecting the explanation offered by the assessee, the assessment was concluded.

The assessee challenged the jurisdiction of the Assessing Officer (AO) to pass the order and also challenged the decision on merits.

Before the CIT(A), the assessee challenged the order on the ground that the assessment was made u/s 143(3)/148 of the Act, without service of alleged notice issued u/s 148. However, the CIT(A) dismissed this ground on the ground that the assessee had not produced any evidence in support of his contention.

Contentions of the Assessee:
The assessee approached the Tribunal and contended that his ground was dismissed requiring him to produce negative evidence.

The assessee made his limited prayer that the issue may be set-aside back to the file of the CIT(A) directing the said authority to first decide the jurisdictional issue considering the record.

Observations made by the ITAT:
It was observed by the Tribunal that the Revenue could not show as to what is the kind of evidence, an assessee can produce to show that no notice was served upon it.

The Tribunal opined that the conclusion drawn by the CIT(A) on facts could not be upheld as it suffered from patent fallacy which was against all common sense and logic.

The Tribunal stated that the factum of issuance of notice within time is to be proved on query by the authority whose jurisdiction is challenged for want of notice. The aggrieved party cannot be asked to lead negative evidence in support of its claim. When service of notice is challenged by a party then the onus to demonstrate that notice was issued in accordance with law is on the authority whose jurisdiction in the absence of notice is under challenge. The dismissal of assessee’s ground requiring the assessee to produce evidence in support of its contention was beyond the law or logic.

Held:
The order was set aside and the issue was restored back to the file of the CIT(Appeals) with a direction to first decide the jurisdictional issue on facts in accordance with law and thereafter to proceed to consider the issue on merits if so warranted on facts.

Download Full Judgment

Share

Recent Posts

  • Income Tax

If assessee fails to explain source of purchases, estimating profit rate contrary to Section 69C

When assessee failed to explain source of purchases expenditure, estimating profit rate was contrary to provision of Section 69C which…

12 hours ago
  • Income Tax

Income Tax Department not trusted even upon its lawyers – SC slams ITD for delay

Income Tax Department not trusted even upon its lawyers – SC slams ITD on adopting a long process resulting delay…

14 hours ago
  • GST

Goods loaded in two trucks with one e-way bill stating both truck numbers – No evasion

When goods are loaded in two trucks with one e-way bill specifically mentioning both truck numbers, no intention to evade…

2 days ago
  • Labour Laws

GOI makes four new Labour Codes  effective from 21st November 2025

GOI makes four new Labour Codes  effective from 21st November 2025 Government of India has announced that the four Labour…

2 days ago
  • EPFO

Provident fund dues have first charge over claim of bank under SARFAESI Act – SC

Provident fund dues definitely have a first charge over claim of bank under SARFAESI Act – Supreme Court In a…

2 days ago
  • Income Tax

CBDT notifies the Capital Gains Accounts (Second Amendment) Scheme, 2025

CBDT notifies the Capital Gains Accounts (Second Amendment) Scheme, 2025 MINISTRY OF FINANCE (Department of Revenue) (CENTRAL BOARD OF DIRECT…

3 days ago