01 September 2007
The law is very clear that the onus to prove service of notice lies on the department. In absence of evidence of service of notice the assessment, penalty, 263 all proceedings are held to be bad in law. Your line of defense should be that in absence of valid service of notice no compliance is possible hence there is no question of default in compliance. One on the decisions I can recall is of Calcutta High Court which has canceled the assessment due to non service of notice.
Calcutta High Court in the case of K N Banerjee Vs CIT reported as 238 ITR 634 (Cal) has held as follows:
We have, therefore, no hesitation in holding that the service by registered post of the notices allegedly sent to the appellant writ applicant, resulting in the passing of the order under section 147 of the Act was not properly effected or accomplished. Since, admittedly, the service of such notices was a necessary pre-requisite, a condition precedent for passing of the orders under section 147 of the Act, we also have no hesitation in holding that such orders were bad in law, and, therefore, the proceedings under section 263 of the Act, admittedly, originating from such orders could not be initiated against the appellants.
I hope you will be able to locate several such decisions in this line.
CAclubindia
