(Judgment of the Court was delivered by K.RAVIRAJA PANDIAN, J.) The revenue is on appeal by formulating the following question of law :
Whether on the facts and in the circumstances of the case, the Income tax Appellate Tribunal was right in holding that the assessment under
section 144 of the Income Tax Act made on the assessee in the status of the resident on the basis of the details of stay available on record as per the statement filed by the assessee, was void ab initio, on the sole ground that the assessee claimed that the notice under section 143(2) of the Act was not received by him?"
2. The facts :The assessee filed his return for the assessment year 2005-06 on 30.06.2006 admitting a total income of Rs.2,05,280/-. It is the case of the revenue that the revenue issued notice under section 143(3) of the Act, but there was no response. The assessment was completed under
section 144 on 24.12.2007 on a total turnover of Rs.37,32,880/- and a demand of Rs.17,22,990/- was made. The assessee is a flute artist. He claimed to be a non resident for the previous year 2004-05 and claimed to have been in India only for a total period of 181 days, but that was not accepted by the department by saying that the assessee has not proved by producing his stay outside India. On that score the assessee was held to be a resident and to be assessed on the world income. Accordingly, the foreign income to the tune of Rs.35,17,879/- was added to the admitted Indian income of Rs.2,06,524/-. Aggrieved by that, the assessee filed an appeal before the Commissioner of Income Tax (Appeals) on the ground that before passing the order under
section 144, no notice was received by the assessee. Accepting the contention, the Commissioner (Appeals) has passed an order that the order passed under
section 144 of the Act was invalid and ab initio void, allowed the appeal. The department carried the matter on further appeal to the Tribunal and sought to establish before it that notice has been duly served and non service is only a technical default, which can be cured at any time, but the appeal so made to the Tribunal has been rejected on the ground that the department has not established before the Tribunal about the issuance of notice. The correctness of the same has been agitated in this appeal before this Court.
3. Learned senior counsel for the department reiterated what has been stated before the Commissioner as well as before the Tribunal. The Tribunal has noted that the Commissioner of Income Tax (Appeals) has recorded a categorical finding and admission of the assessing officer in the remand report that there is no proof of service that notice under section 143(2)/
142(1) of the Act within limitation before the assessment order under
section 144 was passed. Further, the facts stated by the assessee have not been controverted by the revenue by showing any record/evidence. The Tribunal has also called for the records so as to ascertain the facts in respect of issuance of notice and service of the same. But the fact reveals that the Tribunal was not able to find any proof of sending the notice on the alleged dates to the assessee and ultimately, the Tribunal recorded a finding that there was no record for the revenue to show that the notice was served upon the assessee. Thereupon, by following the decision of the Delhi High Court in the case of CIT v. Silver Streak Trading (P) Ltd., 216 CTR 261 affirmed the order of the Commissioner of Income Tax (Appeals).
4. From the above recorded factual finding, we are of the view that the revenue has not made out any case for determining any question of law. The appeal is dismissed. No costs.
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