The main legal point established in the judgment is that the service of notice under Section 143 (2) of the Income Tax Act must comply with the prescribed period, as outlined in the relevant provisions of the Act and related procedural rules.

V. B. GUPTA, J.

( 1 ) BEING aggrieved by the order dated 13th July, 2006 passed by Income Tax appellate Tribunal (for short as 'tribunal') in ITA No. 3259/del/2004 relevant for the assessment year 2001-02, the Revenue has filed the present appeal.

( 2 ) THE brief facts are that Assessee filed his return of income on 31st october, 2001 which was processed under Section 143 (1) of the Income Tax Act, 1961 (for short as 'act') on 31st October, 2002. Thereafter, the return was taken up for scrutiny and notice under Section 143 (2) of the Act was issued on 25th October, 2002 by registered post at the address given in the return of income i. e. B-226, Vivek Vihar, Delhi. The said notice was returned undelivered by the Postal Authorities with the remarks that "plot No.- 226 does not exists. "

( 3 ) THEREAFTER, another notice was served under Section 143 (2) of the Act on 14th November, 2002 and the assessment was completed on a total income of Rs. 56,70,560/- by order dated 4th March, 2004 passed under Section 143 (3) of the Act.

( 4 ) THE Assessee filed an appeal before Commissioner of Income Tax (Appeal)and took up the contention that the assessment is invalid for the reason that no notice under Section 143 (2) of the Act was served on it within the time prescribed by the proviso to this Section, as it existed at the relevant time. The Commissioner of Income Tax (Appeal) obtained a remand report from the assessing Officer and held that the statutory notice under Section 143 (2) of the Act having been issued on 25th October, 2002 on the basis of address given in the return of income was within time and therefore, the assessment cannot be held to be invalid and accordingly he confirmed the assessment.

( 5 ) THE assessee filed further appeal to the Tribunal and Tribunal vide its impugned order held that no notice under Section 143 (2) of the Act had been served on the Assessee on or before 31st October, 2002 and therefore, the assessment is invalid and thus allowed the appeal of the Assessee.

( 6 ) IT has been contended by learned counsel for the Revenue that the notice dated 25th October, 2002 was issued within the prescribed period and the same was returned with the endorsement that "no Plot No. 226 exists" and it appears to be handi work of the Assessee himself who has connived with the postal Authorities and obtained the alleged report for non service because, the subsequent notice addressed at the said address has been duly served and accepted by the Assessee and the earlier notice was returned by the Assessee only to defeat the service of notice and make it beyond limitation to escape rigours of Section 143 (2) of the Act and Assessee being at fault cannot take advantage of his own wrong.

( 7 ) ON the other hand, it had been contended by learned counsel for the assessee that no notice within the prescribed period has been served upon the assessee and there is an interpolation on the address of the addressee mentioned on the notice and since no notice under Section 143 (2) has been served upon the assessee within the prescribed period, the assessment in question is invalid.

( 8 ) THE short question which arises for our consideration in this case as to whether notice under Section 143 (2) of the Act has been duly served upon the assessee within the prescribed period or not.

( 9 ) SECTION 143 (2) of the Act as it existed on the relevant time reads as under:-

" (2)Where a return has been made under section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer shall, if he considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under-paid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced there, any evidence on which the assessee may rely in support of the return: provided that no notice