Point of Law: Notice under Section 143(2) of Act is required to be given on present address mentioned.

ORDER :

1. The petitioner has filed this writ petition seeking quashment of the order dated 13.08.2012 and subsequent notice dated 06.11.2012 issued by the respondents as also proceedings drawn in pursuance of the notices.

2. Quint essential facts giving rise to the present writ petition are that the petitioner submitted his income tax return under Section 139(1) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') for the assessment year 2010-2011 on 05.10.2010. The petitioner thereafter received a notice dated 03.08.2012 under Section 143(2) of the Act for personal appearance on 13.08.2012. According to the petitioner, the said notice was received by him only on 07.08.2012. In response to the said notice, the petitioner submitted his objection on 13.08.2012 stating that the notice is beyond limitation provided under the proviso to Section 143(2) of the Act, and therefore, the proceedings were liable to be dropped. However, his objection was rejected vide order dated 13.08.2012 which was said to be received on 17.08.2012. The petitioner was also intimated vide letter dated 13.08.2012 regarding next date of hearing to be 24.08.2012. The petitioner thereafter collected other relevant information and then made certain representations but the proceedings were not dropped and when another notice fixing date of hearing on 15.11.2012 was received, while reiterating that proceedings could not be continued as barred by limitation, present writ petition came to be filed.

3. Learned counsel for the petitioner argued that while submitting his return for the assessment year 2010-2011, the petitioner had given his present address but instead of sending notice on the said address, notice was given on a previous address of the petitioner. He would also argue that the statement of fact contained in communication dated 13.08.2012 is factually incorrect that the petitioner refused to receive the notice. From the communication made by the Department of Post India (Annexure-12) it is made clear that when the notice was taken, the same was returned with the report that the petitioner was not residing at the given address on 17.09.2011. It is thus clear that there was no service of notice upon the petitioner, as mandated under Section 282 of the Act. The submission of the learned counsel for the petitioner is that once the notice could not be served with the report that the petitioner was not found residing at the said address, it was incumbent on the part of the respondent to get the notice served in accordance with the provisions contained in Order 5 Rule 17 CPC.

4. Learned senior counsel for the petitioner further argued that even if it is assumed that no intimation regarding change of the office address is given, if the petitioner was not found, the notices could not be treated as served. As all subsequent efforts to get the notices served on the petitioner could not succeed, after 13.09.2011, proceedings under Section 143 of the IT Act could not be initiated as it was barred by law.

5. On the other hand, learned counsel for the respondents would submit that the petitioner has admitted that two addresses shown in the order dated 13.08.2012 (Annexure-4) were submitted by the petitioner. There is no averment in the writ petition that the petitioner had sent any intimation to the department for change of the address. Therefore, the notices were issued at the address given in the PAN data base which is available with the department.

6. Relying upon the decision of the Supreme Court in the case of Principal Commissioner of Income Tax, Mumbai vs. M/s. I-Ven Interactive Limited, Mumbai [AIR 2019 SC 5561], learned counsel for the respondent would submit that once the notice is sent to assessee at the address as per PAN data base within time limit prescribed under proviso to Section 143(2) of the Act, actual proof of service is not required and there is substantial compliance of the legal requirement. He would further submit that in the afo