Ramakumar (COnsultanat) (36 Points)
12 October 2009Hi,
I got an email from income tax serving notice of 143 (2) asking me to appear for assessment on a particular date.
Is e-mail a proper way to serve notice ? Can i ignore the email ? I did not receive an written communication because i dont live anymore in the address quoted in my PAN card.
Pls help if anyone knows...
Sorabh Gupta
(Manager ( Taxation ))
(877 Points)
Replied 12 October 2009
RamaKumar
I dont think that e-mail is proper & valid communication to serve any such type of legal notice. Notice must in written communication becoz there some other relevant factors which is to be consider at the time of legal proceeding ie. Date of serve of Notice , Time limit , Notice must be signed & some other factors ............So you can also take the view of some official of income tax deppt. about this e-mail notice indirectly.
PRAVEEN KUMAR
(MBA (Finance) B.Com.(P))
(3443 Points)
Replied 12 October 2009
I think it is not yet clear if assess is not found on address should this email communication treated as valid communication.
here is a intresting case law given for you kind perusal about the same :-
Assessment is invalid if notice under section 143(2) not served properly
In an interesting case, Assessing Officer served the notice u/s 143(2) to an assessee by registered post which was returned undelivered by postal authorities with the remark that “the said plot does not exist”. The address to which the notice was posted inadvertently missed an alphabet ‘B’ in the address, as a result of which the service of the notice could not be made by postal authorities.
In the instant case, the Assessing officer carried out ex-parte assessment and passed assessment order and demand notice.
It was discovered that the notice was issued by registered post at address given in return of income, i.e., B-226, Vivek Vihar, Delhi, however Alphabet ‘B’ was missing form the address to whom ITO posted the notice. The assessee insisted that since he was not delivered the notice in the time as stipulated in the income tax act, and hence assessment made by Assessing Officer was invalid.
The assessee contended that the assessment was invalid for the reason that no notice under section 143(2) was served on him within the time prescribed by the proviso to this section, as it existed at the relevant time. The commissioner (Appeal) obtained a remand report from the Assessing Officer and held that the statutory notice under section 143(2) having been issued on 25-10-2002, on the basis of address given in the return of income was within time and, therefore, the assessment could not be held to be invalid and, accordingly, he confirmed the assessment.
However, when assessee moved an appeal before ITAT, the Tribunal held that no notice under section 143(2) had been served on the assessee on or before 31-10-2002 and, therefore, the assessment was invalid.
Tribunal noted that the notice that was sent by registered post, which was received back undelivered with the endorsement “No Plot No.226 exists”. Thus, admittedly, notice under section 143(2) of the Act was not served upon the assessee. It may be pertinent to point out that alphabet “B” is missing in the endorsement made by the postal authorities. Thus, it stands established that the postman had not gone to “Plot No. B-226, Vivek Vihar, Delhi” because, his endorsement does not say “Plot No. B-226, Vivek Vihat, Delhi” does not exist.
More importantly, the tribunal noted that even otherwise, as per Order V Rule 19A of the Code of Civil Procedure, the notice sent by registered post ought to have been sent along with acknowledgement due but, admittedly the registered envelope was not sent along with acknowledgement due.
Accordingly the case was decided in favor of assessee.
Sunil
(Trader)
(2611 Points)
Replied 12 October 2009
The date the speed post postman first serves the notice at your door (the address in your database) is the date of SERVING the notice on you.
Please see incometax website. It is mentioned that the address you specify as your communications address in the IT Database (not the returns you file) is the address on which department will send you written communication and that should be upto date.
The onus is on you to change the address in the NSDL or UTI to be served a notice correctly. I remember a Supreme Court judgement regarding service of summons and the date of 1st service is always the date the Registered A/D Postman comes to your door and that is indeed your address.
In your case the ITO is wanting you to come to the office and take the notice. There is new section 292B where if you cooperate with the AO even after the time barring, it will be deemed that notice is properly served on you unless you record your objection before completion of assessment.
If you ignore this, the ITO can resort to best judgment assessment. I too have recently had a scrutiny and I was surprised with the information the AO had at his disposal. He will have details of interests you received without TDS as banks are obliged togive data separately for this. If you has any AIR items especially credit card payments above 2 lakhs (even if for business of your employer or proprietorship) he has it all in form of printouts.
If you are clean, I suggest you waive the notice serving and furnish required data to complete the assessment. He will only match the data with your returns and ensure that no income of yours has skipped assessment. For best judgment, he is not supposed to use any previous returns data etc. He will rely on the materials in his possession.
Depends on you. If your case is selected as a result of CASS, these AIR info are exactly the criteria the department feeds into the system to determine revenue potential of a case. The AO will not disclose to you why your case is picked up as department will never want to disclose its source of info. What I am informing you is that your AO has a gold mine of information to carry out his work for the department. I would advise you not to be too rigid on 143(2). Rigidity is OK for other arbitrary sections. Just consider it a bad luck if it is a CASS and complete your assessment. You can approach the AO directly and do not need to visit the clerks and peons down the line. You have to answer is questions calmly and remember it is not an impression building excercise. Make proper presentation and submit the data required in such a way that even if say the AO is transferred and another one comes in his place, the new incumbent can draw up the same infeences as the previous one. If you wish to send a CA or your employee or a relative other than spouse, father or son/daughter, lodge a LA of appropriate stamp paper as per the law in the state of assessment. It is also upto you to get your file transferred to AO of your jurisdiction but you can complete this scrutiny with the AO where return was filed.
If your income as per your bank statements and all information ITO has is correctly returned by you and deductions rightly claimed, there is no reason why your returns will not be accepted as filed.
PRAVEEN KUMAR
(MBA (Finance) B.Com.(P))
(3443 Points)
Replied 13 October 2009
Well,,,, very well explained. well done Sunil Jee
Ramakumar
(COnsultanat)
(36 Points)
Replied 13 October 2009
Ok..thanks for all the answers. But pls tell, what can happen if i dont appear for assessment ?
Sunil
(Trader)
(2611 Points)
Replied 13 October 2009
He will use his best judgement options with whatever material he has and later for recoveries of demands may refer to your debtors (employer or those who deduct TDS from you like banks etc or customers). They have this information at their disposal.
As you are at fault for not updating address or even informing ITO, no higher appelate authority will listen to you for a rectification or any relief. You will face a lot of difficulties even though your case may be genuine.
I hope that you will not have to get back to this forum asking for suggestions on how to go about if the situation becomes adverse.
CAclubindia
