COMMISSIONER OF INCOME TAX Vs. OM BUDHISATNA TRUST

JUDGEMENT

(1.) The assessee which is a trust had filed its return of income dated 31 -10 -1997 claiming exemption under Sec. 11 of the Income Tax Act. This return was processed under Sec. 143(1)(a) of the Income Tax Act on 31 -5 -1999 but was later selected for scrutiny. According to the Income Tax Department, notice under Sec. 143(2) of the Act dated 14 -10 -1998 was sent to the assessee in this behalf which was dispatched by the registered post even after purported service, nobody appeared on behalf of the assessee and, therefore, ex parte assessment order was passed. The assessee challenged order before CIT(A) but remained unsuccessful. Thereafter, further appeal was preferred before the ITAT. Before the Tribunal, for first time, a plea was taken by the assessee that notice dated 14 -10 -1998 issued under Sec. 143(2) of the Act was never served upon or received by assessee. The assessee had filed affidavit in support of his averment and on this basis, after going through the record, the Tribunal accepted aforesaid plea of assessee arid quashed Assessment as time barred. This order is under challenge before us. We have heard the learned counsel for the parties. The submission of Ms. Bansal, learned counsel appearing for the Revenue is that the plea of non -service of notice was never taken before the CIT (A) which was the first occasion for taking such a plea and in the appeal preferred by the assessee, order of the Assessing Officer was challenged only on merits. She further submits that on the contrary in the written submission dated 12 -7 -2001 filed by the assessee before the CIT(A), the assessee accepted that notice dated 14 -10 -1998 was served upon him and one of the submissions in those written argument was "It is wrong to say that the assessee company did not comply with the notice dated 14 -10 -1998."

(2.) We find force in the aforesaid submission of Ms. Bansal not only because no claim of non -receipt of notice was taken before CIT(A) averments made in written submissions, it is clear that assessee proceeded on basis that notice was served, and in fact, it had complied with said notice as well. Raising of such a plea for first time before the ITAT, thus clearly appears to be an afterthought plea. The approach adopted by ITAT in dealing with the submission of assessee about the non -receipt of notice clearly erroneous and the ITAT ignored in noticing that the plea qua the non -receipt of the notice was not raised before the CIT(A) and further that in the written submissions of the assessee, there was an implied admission of the receipt of the said notice. We, therefore, set aside the impugned orders dated 3 -8 -2007 passed by the ITAT and remand the case back to the Tribunal for decision of the Assessee's appeal on merits.