HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Income Tax Appeal No. 165 / 2015 M/s. Mundra Woollen Mills (P) Ltd., Having Its Registered Office At, RIICO Industrial Area, Jaipur Raod, Kekri, Through Its Director, Shiv Ratan Mundra ----Appellant Versus 1. Assistant Commissioner of Income Tax, Circle-2, Central Revenue Building, Jaipur Road, Ajmer 2. Income Tax Appellate Tribunal, Jaipur Bench, Jaipur, Rajasthan Chamber Bhawan, M.I. Road, Jaipur Through Assistant Registrar 3. Union of India , Through Commissioner of Income Tax, Central Revenue Building, Jaipur Road, Ajmer ----Respondents For Appellant(s) : Mr. Anant Kasliwal For Respondent(s) : Ms. Parinitoo Jain HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Judgment 07/11/2017 1. By way of this appeal, appellant has assailed judgment and order of Tribunal whereby Tribunal has dismissed appeal of assesse. 2. This court while admitting matter framed following questions of law:- i) Whether on proceeding initiated under Section 143(2) of Income Tax Act, 1961, service of notice on assessee is necessary (2 of 4) [ITA-165/2015] or not if objection regarding service has been raised and not dealt with whether initiation of proceedings can be said to be valid. ii) Whether discrepency in internal stock register not forming party of statutory books of accounts and consequential addition can be said to be legally justified when no discrepency in statutory books of accounts could be shown. iii) Whether ITAT was justified in having confirmed valuation of estimated quantity of stock listed out during survey proceeding without reconciling same with regular computerized quantitive records maintained by appellant company. 3. We have heard counsel for both sides. 4. Taking into consideration certificate which is issued on 17th August, 2009 and other documents on record, prima facie it seems that though notice was sent by speed post, it has not been served on appellant. endeavour is made by counsel for appellant to relied upon decision of Jharkhand High Court in case of Milan Poddar vs. Commissioner of Income Tax, Central Revenue Building, Main Road, Ranchi & Anr. reported in [2013] 357 ITR 619 (Jharkhand) wherein it has been held as under:- 5. Learned counsel for appellant drew our attention to order-sheet wherein Assessing Officer has taken note of objection of assessee in order sheet dated 10.9.2008. It is submitted that finding substance in objection of assessee, Assessing Officer issued notice to Postmaster of area concerned i.e.; G.P.O., Doranda, from where notice under Section 143(2) alleged to has been sent through Speed-post. Not only this but letter under Section 133(6) of Act of 1961 was also served upon Postmaster, G.P.O., Doranda. Postmaster gave reply to notice and submitted that request of Income Tax (3 of 4) [ITA-165/2015] Department is time barred as record of 'Speed-post' is not kept after expiry of three months. According to learned counsel for appellant, in view of above facts, it is clear that presumption under Section 292BB of Act of 1961, cannot be taken and there was no material available on record to prove that notice was served upon assessee at all, what to say of in time. 8. We have considered submissions of parties on this issue. It will be relevant to mention here that as per Section 282 of Act of 1961, notice can be served either by post or in manner in which summons are issued by Courts under provisions of Code of Civil Procedure. Therefore, if argument of learned counsel for appellant, that Income Tax Act of 1961 is special Act and it contains provisions for service of notice, according to which only notice can be served upon assessee; then in that view of matter, only recourse is that notice should be issued either by post or it may be served as is served under provisions of Code of Civil Procedure. In this case, notice under Section 143(2) of Act of 1961 was alleged to has been sent by post, which includes sending notice by Ordinary Post, Post under Certificate, Registered Post, Registered A/D or by Speed Post and this fact is not in dispute that notice was sent by "Speed Post" and, therefore, notice was in accordance with law under Section 282(1) of Act of 1961. 11. next question arose is whether in facts of case, Tribunal has committed error of law in holding that service was valid?, which is question number 1 framed in this appeal. 15. In matter of service through post, there are certain ways whereby notices are sent through department of post. In this case, as we have already discussed that in order sheet, name and address of assessee was mentioned and address is wrong was not plea of assessee. Therefore, Department sent notice under Section 143(2) of Act to Assessee on assessee's address, and that too through Speed Post which is more reliable mode therefore, it is required to be presumed that notice was delivered to addressee. (4 of 4) [ITA-165/2015] 5. In our considered opinion, appellant was not served otherwise there is no need of another notice to be issued in 2010. 6. In that view of matter, without entering into merits of appeal we are remitting back matter to Tribunal. order of Tribunal is quashed and set aside. 7. It is made clear that we have not expressed any opinion on merit and Tribunal will hear appeal afresh and will decide issue without being influence by this order of remitting back to Tribunal. 8. Both sides will appear before Tribunal on 11 th December, 2017. 9. appeal stands allowed. (VIJAY KUMAR VYAS),J. (K.S. JHAVERI),J. A.Sharma/11 Powered by TCPDF (www.tcpdf.org) Mundra Woollen Mills (P) Ltd. v. Assistant Commissioner of Income-tax, Circle-2, Ajmer / Income-tax Appellate Tribunal/ Union of India, Ajmer