REPORTABLE IN SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.8132 OF 2019 (Arising out of SLP(C) No.3530/2019) Principal Commissioner of Income Tax, Mumbai Appellant Versus M/s I Ven Interactive Limited, Mumbai Respondent J U D G M E N T M.R. SHAH, J. Leave granted. 2. Feeling aggrieved and dissatisfied with judgment and order dated 27.06.2018 passed by High Court of Judicature at Bombay in Income Tax Appeal No.94 of 2016, by which High Court has dismissed said appeal preferred by Revenue and has confirmed orders passed by learned C.I.T (Appeals) as well as I.T.A.T quashing and setting aside assessment order for A.Y. 2006 07, revenue has preferred present appeal. 1 3. That respondent assessee filed return of income for Assessment Year 2006 07 on 28.11.2006 declaring total income of Rs.3,38,71,716/ . said return was filed under E Module Scheme and thereafter hard copy of same was filed on 05.12.2006. return of income was accompanied with balance sheet and profit and loss account. return was processed under Section 143(1) of Income Tax Act, 1961 (hereinafter referred to as 1961 Act ). That notice under Section 143(2) of 1961 Act was issued to respondent assessee on 05.10.2007. notice was sent at assessee s address available as per PAN database. That further opportunity was provided to assessee vide notice under Section 143(2) of 1961 Act on 25.07.2008. said notice was also issued to assessee at available address as per PAN database. That thereafter, further notices under Section 142(1) of 1961 Act were issued to assessee on 23.01.2008, 25.07.2008 and 05.10.2008 along with questionnaires calling for various details and were duly served on respondent assessee company. In response to said notice, representative of company appeared on 28.11.2008 and 04.12.2008. assessee participated in 2 proceedings before Assessing Officer. However, assessee challenged notice under Sections 143(2) and 142(1) of 1961 Act on ground that said notices were not served upon assessee as assessee company never received those notices and subsequent notices served and received by assessee company were beyond period of limitation prescribed under proviso to Section 143 of 1961 Act. 3.1 That Assessing Officer vide assessment order dated 24.12.2008 completed assessment under Section 143(3) of 1961 Act by making disallowance of Rs. 8,91,17,643/ under Section 14A of 1961 Act, read with Rule 8 of Income Tax Rules and computed total income at Rs.5,52,45,930/ . 3.2 Being aggrieved by assessment order dated 24.12.2008, assessee preferred appeal before learned C.I.T (Appeals). learned C.I.T (Appeals) allowed appeal vide order dated 23.12.2010 holding, inter alia, that Assessing Officer completed assessment under Section 143(3) of 1961 Act, without assuming valid jurisdiction under Section 143(2) of 1961 Act, and therefore, assessment framed under Section 143(3) of 1961 Act was invalid. learned C.I.T (Appeals) observed that as subsequent service of notice under Section 3 143(2) of 1961 Act was beyond period of limitation prescribed under proviso to Section 143 of 1961 Act and earlier no notices were served upon assessee and/or received by assessee as same were sent at old address and in meantime company assessee changed its address and therefore assessment order was bad in law. Revenue preferred appeal before Income Tax Appellate Tribunal, which came to be dismissed by learned I.T.A.T. vide order dated 19.01.2015. order passed learned C.I.T (Appeals) as well as I.T.A.T. have been confirmed by High Court, by impugned judgment and order. Hence, Revenue has preferred present appeal. 4. Shri H. Raghavendra Rao, learned Advocate appearing on behalf of Revenue has vehemently submitted that impugned judgment and order passed by High Court dismissing appeal and thereby confirming orders passed by learned C.I.T (Appeals) and I.T.A.T holding that assessment order was bad in law, is contrary to provisions of Section 143(2) of 1961 Act. 4.1 It is further submitted that Assessing Officer sent notice under Section 143(2) of 1961 Act to assessee at 4 available address as per PAN database. It is submitted that as such there was no intimation by assessee to Assessing Officer with respect to change of address. It is submitted therefore that notice under Section 143(2) of 1961 Act was sent to assessee on available address as per PAN database. It is submitted therefore that once notice under Section 143(2) of 1961 Act was issued and sent to assessee on available address as per PAN database, it can be said to be sufficient compliance of relevant provisions of 1961 Act, more particularly Section 143(2) of 1961 Act. 4.2 It is further submitted that as such High Court has not properly appreciated fact that alleged communication dated 06.12.2005 from respondent assessee to Assessing Officer intimating new address of assessee was never received by Assessing Officer. It is submitted that even today also assessee is not in position to produce said communication. It is submitted therefore respondent assessee has failed to prove that alleged communication dated 06.12.2005 was, in fact, sent to Assessing Officer, intimating about new address. 4.3 It is further submitted by learned Advocate appearing on behalf of Revenue that, as such, learned C.I.T (Appeals) 5 has heavily relied upon alleged communication dated 06.12.2005 intimating change of address to Assessing Officer by assessee, however, communication dated 06.12.2005 is not forthcoming and has not been produced. It is submitted therefore that in facts and circumstances of case Assessing Officer was justified in sending notices under Section 143(2) of 1961 Act at available address as per PAN database. It is submitted therefore that learned C.I.T (Appeals), I.T.A.T and High Court have committed grave error in holding that assessment order is bad in law as notice under Section 143(2) of 1961 Act was beyond period of limitation. 4.4 It is further submitted that as such thereafter assessee did participate in assessment proceedings and therefore learned C.I.T (Appeals) ought to have considered appeal on merits and ought not to have set aside assessment order solely on ground that assessment order is bad in law. 4.5 Making above submissions, it is prayed to allow present appeal. 5. Shri S.K. Bagaria, learned Senior Advocate appearing on behalf of respondent assessee has made strenuous efforts to 6 support orders passed by learned C.I.T (Appeals) and confirmed by I.T.A.T. and High Court. It is submitted that as such Assessing Officer was aware of new address of assessee and therefore Assessing Officer was required to send notices on new address. It is submitted that instead Assessing Officer sent notice at old address and therefore same was never served upon assessee. It is submitted that by time subsequent notice was served upon assessee, notice under Section 143(2) of 1961 Act was barred by limitation as provided under Section 143(2) of 1961 Act. Therefore, learned C.I.T (Appeals), I.T.A.T and High Court are right in holding that assessment order was bad in law. 5.1 Learned Senior Advocate appearing on behalf of assessee has further submitted that as such change of address and change in name of assessee company was intimated to Registrar of Companies in Form 18. It is submitted therefore in fact name of company was changed and change in address has been established and proved. 7 5.2 Shri Bagaria, learned Senior Advocate has further submitted that Assessing Officer was in knowledge of new address, which is evident from fact that Assessment Orders for A.Y 2004 05 and A.Y. 2005 06 were sent at new address. 5.3 Relying upon decision of this Court in case of Assistant Commissioner of Income Tax v. Hotel Blue Moon reported in (2010) 3 SCC 259, it is submitted by learned Senior Advocate for assessee that as held by this Court issuance of notice under Section 143(2) of 1961 Act within time prescribed in proviso to Section 143(2) of 1961 Act is must and mandatory. It is submitted that therefore when it was found that notice under Section 143(2) of 1961 Act was not served upon assessee within time prescribed in proviso to Section 143(2) of Act, assessment order was bad in law and same was rightly set aside by learned C.I.T (Appeals), confirmed up to High Court. 5.4 Making above submissions and relying upon aforesaid decision of this Court, it is prayed to dismiss present appeal. 8 6. We have heard learned counsel for respective parties at length. 6.1 At outset, it is required to be noted that notice under Section 143(2) of 1961 Act was sent by Assessing Officer to assessee at address as mentioned in PAN database on 05.10.2007 and same was within time limit prescribed in proviso to Section 143(2) of 1961 Act. However, it was case on behalf of assessee that said notice was not served upon assessee as assessee changed its name and address and shifted to new address prior thereto and therefore said notice was not served upon assessee and by time when subsequently notices were served upon assessee, notice under Section 143(2) of 1961 Act was barred by period prescribed in proviso to Section 143(2) of 1961 Act and therefore assessment order is bad in law. It was case on behalf of assessee that vide communication dated 06.12.2005 assessee intimated to Assessing Officer about new address and despite same Assessing Officer sent notice at old address. However, it is required to be noted that alleged communication dated 06.12.2005 is not forthcoming. Neither same was produced before Assessing Officer nor 9 even same has been produced before this Court. In affidavit also, filed in compliance with order dated 21.08.2019, assessee has stated that alleged communication dated 06.12.2005 is not available. Thus, assessee has failed to prove alleged communication dated 06.12.2005. only document available is Form No.18 filed with ROC. Filing of Form 18 with ROC cannot be said to be intimation to Assessing Officer with respect to intimation of change in address. It appears that no application was made by assessee to change address in PAN data base and in PAN database old address continued. Therefore, in absence of any intimation to Assessing Officer with respect to change in address, Assessing Officer was justified in issuing notice at address available as per PAN database. Therefore, Assessing Officer cannot be said to have committed any error and in fact Assessing Officer was justified in sending notice at address as per PAN database. If that is so, notice dated 05.10.2007 can be said to be within period prescribed in proviso to Section 143(2) of 1961 Act. Once notice is issued within period prescribed as per proviso to Section 143(2) of Act, same can be said to be sufficient 10 compliance of Section 143(2) of 1961 Act. Once notice is sent within period prescribed in proviso to Section 143(2) of 1961 Act, in that case, actual service of notice upon assessee thereafter would be immaterial. In given case, it may happen that though notice is sent within period prescribed, assessee may avoid actual service of notice till period prescribed expired. Even in relied upon case by learned Senior Advocate for assessee in case of Hotel Blue Moon (supra), it is observed that Assessing Officer must necessarily issue notice under Section 143(2) of 1961 Act within time prescribed in proviso to Section 143(2) of 1961 Act. Therefore, in facts and circumstances of case, High Court is not justified in dismissing appeal and confirming orders passed by learned C.I.T (Appeals) and I.T.A.T. setting aside assessment order solely on ground that assessment order is bad in law on ground that subsequent service of notice upon assessee under Section 143(2) of 1961 Act was beyond time prescribed in proviso to Section 143(2) of 1961 Act. 7. Now so far as observations made by High Court while concurring with view of learned Tribunal that 11 merely by filing of return of income with new address, it shall be enough for assessee to discharge its legal responsibility for observing proper procedural steps as per Companies Act and Income Tax Act is concerned, we are of opinion that mere mentioning of new address in return of income without specifically intimating Assessing Officer with respect to change of address and without getting PAN database changed, is not enough and sufficient. In absence of any specific intimation to Assessing Officer with respect to change in address and/or change in name of assessee, Assessing Officer would be justified in sending notice at available address mentioned in PAN database of assessee, more particularly when return has been filed under E Module scheme. It is required to be noted that notices under Section 143(2) of 1961 Act are issued on selection of case generated under automated system of Department which picks up address of assessee from database of PAN. Therefore, change of address in database of PAN is must, in case of change in name of company and/or any change in registered office or corporate office and same has to be intimated to Registrar of Companies in prescribed format 12 (Form 18) and after completing with said requirement, assessee is required to approach Department with copy of said document and assessee is also required to make application for change of address in departmental database of PAN, which in present case assessee has failed to do so. 8. Now so far as submission on behalf of assessee that with respect to Assessment Years 2004 05 and 2005 06, communications and assessment orders were sent at new address and therefore Assessing Officer was in knowledge of new address is concerned, same has been sufficiently explained by Revenue. 9. In view of our findings, recorded hereinabove, impugned judgment and order passed by High Court as well as orders passed by learned C.I.T (Appeals) and I.T.A.T holding assessment order bad in law on aforesaid ground cannot be sustained and same deserve to be quashed and set aside. As learned C.I.T (Appeals) has not considered other grounds on merits and has not considered appeal on merits, matter is required to be remanded to learned C.I.T (Appeals) to consider appeal on merits, in accordance with law. 13 10. Accordingly, present Appeal is Allowed. Impugned Judgment and Order passed by High Court as well as orders passed by C.I.T (Appeals) and I.T.A.T are hereby quashed and set aside. matter is remanded to learned C.I.T (Appeals) to consider Appeal on merits on other grounds, in accordance with law. No costs. .J. [UDAY UMESH LALIT] .J. [INDIRA BANERJEE] NEW DELHI; .J. OCTOBER 18, 2019. [M.R. SHAH] 14 Principal Commissioner of Income-tax, Mumbai v. I-Ven Interactive Limited