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Ms. Maulli Ganguly Income Tax Officer - 11(1)(2) B-503/4, 5th Floor Mumbai Above Pizza Hut, Lokhandwala Vs. Complex, Andheri (W) Mumbai 400053
October, 14th 2013
                           "B" Bench, Mumbai

                 Before Shri D. Manmohan, Vice President
                and Shri Sanjay Arora, Accountant Member

                          ITA No. 143/Mum/2011
                         (Assessment Year: 2006-07)

     Ms. Maulli Ganguly                     Income Tax Officer - 11(1)(2)
     B-503/4, 5th Floor                 Vs. Mumbai
     Above Pizza Hut, Lokhandwala
     Complex, Andheri (W)
     Mumbai 400053
     PAN - ADTPG2381E
                Appellant                             Respondent

                   Appellant by:    Mrs. Sanjukta Chowdhury
                   Respondent by:   Durgesh Sumrott

                   Date of Hearing:       07.10.2013
                   Date of Pronouncement: 07.10.2013


Per D. Manmohan, V.P.

     This appeal is filed at the instance of the assessee and it pertains to
A.Y. 2006-07.

2.    The only ground raised before us reads as under: -

     "The ld. CIT(A) erred in holding that notice u/s. 143(2) issued by
     affixture had been duly made without appreciating that third party
     evidence as furnished by the Appellant does not suggest that the said
     notice was served as received by the appellant, the impugned Order
     may be quashed."

3.    Facts necessary for disposal of the appeal are stated in brief. For the
year under consideration the assessee declared professional receipt of
`22,41,700/- as an Actress and net income of `9,08,907/- after debiting
various expenses. Having regard to the circumstances of the case the AO
disallowed   certain   expenses   and    determined    the   total   income   at
`10,41,230/-. Aggrieved, assessee contended before the first Appellate
Authority that the adhoc disallowance made by the AO is not in accordance
                                       2                    ITA No. 143/Mum/2011
                                                                 Ms. Maulli Ganguly

with law. Jurisdiction of the AO in completing the assessment under section
143(3) of the Act, without proper service of notice under section 143(2), was
also challenged before the first Appellate Authority. It was contended before
the CIT(A) that the notice issued under section 143(2) of the Act was not
served upon the assessee and, therefore, time barred. In the absence of due
service of valid notice the assessment has to be treated as null and void.

4.    The   learned    CIT(A)    observed   that   the   assessee's   Authorised
Representative appeared from time to time and various details were also
filed but the case of the assessee was that notice served through assessee's
servant by affixture of notice, without any enquiry, will not amount to due
service of notice. An affidavit was filed stating that notice under section
143(2) was not served on her nor was the said notice affixed at her
residence. Assessee also filed an unauthenticated copy, purportedly from the
Society's Register, to state that on 31.10.2007 no one from the Department
visited the premises to serve the notice by affixture. The learned CIT(A)
observed that the Ward Inspector, Ms. S.J. Pamale, had served the notice by
affixture on 31.10.2007 in the presence of Inspector Ms. Poornima and
considering the fact that the assessee normally does not receive any post on
her own and she is unavailable at the residence for long spells, service of
notice by affixture is proper.

5.    Further aggrieved, assessee is in appeal before us. The learned
counsel for the assessee submitted that there is no proper proof of service of
notice. On the other hand, the learned D.R. furnished a copy of the letter
dated 20.11.2008 of the Income Tax Officer to submit that service of notice
by means of affixture was properly carried out in the light of provisions of
section 143(2) of the Income Tax Act and hence the proceedings are not
barred by limitation. In fact the assessee's representative appeared from
time to time.

6.    We have carefully considered the rival submissions and perused the
record. The AO categorically submitted that the Inspector had served the
notice by affixture on 31.10.2007. The only objection of the learned counsel
is that the Visitor's Register does not contain the name of the Inspector. It
                                       3                  ITA No. 143/Mum/2011
                                                               Ms. Maulli Ganguly

deserves to be noticed that an Income Tax Inspector visiting the society's
premises would not ordinarily be treated as a "Visitor" since he/she has
gone on official duty and for mere affixture it cannot be expected that the
Watchman would ensure recording their names in Visitor's Register. It also
deserves to be noticed that the A.R. appeared from time to time in response
to the notice, which also shows that the notice was served by affixture.
Considering the overall circumstances of the case we are of the view that the
order passed by the learned CIT(A) does not call for any interference. We,
therefore, affirm the order of the learned CIT(A) and dismiss the appeal filed
by the assessee.

Order pronounced in the open court on 7th October, 2013.

                   Sd/-                                  Sd/-
              (Sanjay Arora)                        (D. Manmohan)
           Accountant Member                        Vice President

Mumbai, Dated: 7th October, 2013

Copy to:

   1.   The   Appellant
   2.   The   Respondent
   3.   The   CIT(A) ­ 3, Mumbai
   4.   The   CIT­ 11, Mumbai City
   5.   The   DR, "B" Bench, ITAT, Mumbai

                                                      By Order

//True Copy//
                                                   Assistant Registrar
                                           ITAT, Mumbai Benches, Mumbai
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