# Manoj Kumar Sharma v. Income Tax Officer, Gautam Budh Nagar

- **Citation:** (2020) 2 ILRA 1404
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-18
- **Case number:** Income Tax Appeal No. 13 of 2020
- **Bench:** Biswanath Somadder, Dr. Yogendra Kumar Srivastava, Biswanath Somadder, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-sharma-v-income-tax-officer-gautam-budh-nagar-45490
- **Pages:** 3

## Headnote

Substantial question of law - issues or
questions framed are factual in nature.

Appeal Rejected.(E-10)

## Text

1404 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)02ILR A1404

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2020

BEFORE
THE HON'BLE BISWANATH SOMADDER, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Income Tax Appeal No. 13 of 2020

Manoj Kumar Sharma ...Appellant
Versus
Income Tax Officer, Gautam Budh Nagar
 ...Respondent

Counsel for the Appellant:
Sri Chandra Bhan Gupta

Counsel for the Respondent:
Sri Gaurav Mahajan

Substantial question of law - issues or
questions framed are factual in nature.

Appeal Rejected.(E-10)

(Delivered by Hon'ble Biswanath Somadder, J.
&
Hon'ble Dr. Yogendra Kumar Srivastava, J.)

1. This appeal, under section 260-A of
the Income Tax Act, 1961, has been taken out
in respect of a judgment and order of the
learned Income Tax Appellate Tribunal, Delhi
Bench (S.M.C.), New Delhi, dated 3rd
October, 2019. The appellant has essentially
tried to make out a case on two questions of
law, which, according to the learned advocate
appearing for the appellant, are substantial
questions of law. The questions of law are as
follows:-

1. "Whether there was no service of
notice under section 148 of the Income Tax
Act, 1961 ?

2.
Whether
additional/fresh
evidence was taken into consideration by the
Commissioner of Income Tax (Appeals)-I ?"

2. In our view, the two questions of law
cannot be termed as "substantial questions of
law". The answer to the two questions,
however, are clearly reflected in the order of
the Commissioner of Income Tax (Appeals)-I
dated 11th May, 2018, wherefrom the
appellant preferred an appeal before the
learned Income Tax Appellate Tribunal, Delhi
Bench (S.M.C.), New Delhi.

3. So far as the first question is
concerned, the following paragraphs extracted
from the order of the Commissioner of Income
Tax (Appeals)-I will speak for itself:-

"10. The appellant raised a
ground that the address on which the
notices were sent by the Ld. AO being
"Manoj Kumar Sharma, Nai Abadi,
Dadri, G.B. Nagar" was not the
correct address as there could be
more than one Manoj or Manoj
Kumar or Manoj Kumar Sharma in
Dadri and the post office might have
ended up serving the notices of the
Ld. AO to any one of those persons
named Manoj. It was contended by
the appellant that merely because the
notices sent by the Ld. AO were not
returned by the postal authorities it
cannot
be
presumed
that
those
notices
stood
served
upon
the
appellant and the service of notice
was
complete
in
terms
of
the
provisions of law. Based upon such
logic, the appellant has contended
that there was no service of notice u/s
148 and therefore, the impugned
assessment order was bad in law and
liable to be deleted.
2 All. C/M Baroda U.P. Gramin Bank Vs. The Presiding Officer, Employees Provident Fund & Ors.
1405

11. The ground taken by the
appellant stands negated by the
admitted position of the appellant
himself.

12. The appellant has stated
in its reply to the report of the Ld. AO
that the appellant came to know
about
the
best
judgment assessment in its case only
when it received the notice u/s 274 of
I.T. Act, 1961 asking it to show cause
vide a penalty u/s 271(1)(c) of I.T.
Act, 1961 be not imposed on the
appellant. A copy of the said notice
has been placed on the record of this
office under self authentication by the
appellant. It is seen that the said
notice
vide
F.
No.
ITO/W2(2)/Noida/271(1)(c)/2017-18
dated
04.05.2017 file F. No./PAN/229/148
was issued on the same address on
which the Ld. AO has issued earlier
notices, i.e., Manoj Kumar Sharma,
Nai Abadi, Dadri, G.B. Nagar.

13.
Once
the
postal
authorities have duly served the
notice issued by the Ld. AO upon the
appellant on that address as on May,
2017 there can be no ground unless
proved otherwise to assume that
postal authorities would not have
been able to serve the notices issued
by the Ld. AO upon the appellant on
that very address earlier, i.e., prior to
the service of notice in May 2017. As
none of the notices were returned by
the postal authorities as unserved for
want of complete or correct address
the
presumption
of
bonafide
as
obtaining in favour of the State would
hold the ground. In any case, the
appellant has received the notices
sent by the Ld. AO on that same
address as late as May 2017 and it
cannot claim that the address was
incorrect or incomplete.

14. Therefore, in view of the
admission of the appellant the claim
of the appellant that it did not receive
the notices issued by the Ld. AO
because of the address on which the
said notices were sent by the Ld. AO
was either incomplete or incorrect is
not tenable."

4. So far as the second question
is concerned, the answer to the same
is at paragraph 8 of the said order of
the Commissioner of Income Tax
(Appeals)-I dated 11th May, 2018,
which reads as follows:-

"8. The Ld. AO by its report
dated
26.03.2018
submitted
its
response to the fresh evidence of the
appellant and rejected the same and
recommended that the grounds raised
by
the
appellant
were
neither
maintainable nor acceptable in the
eyes of the law and the appeal of the
appellant deserved to be dismissed by
this office."

5. Both these issues were
considered by the learned Tribunal
while passing the judgment and order
dated 3rd October, 2019, which is
evident from a plain reading of
paragraph 5 of the said judgment and
order dated 3rd October, 2019. In
order to avoid prolixity, we refrain
from reproducing the same.

6. As stated hereinbefore, we do
not find any substantial question(s) of
law involved in this matter. Rather,
the issues are essentially factual in
nature. The appeal is, therefore,
liable to be dismissed and stands
dismissed accordingly.
----------
1406 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)02ILR A1406

REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.01.2020

BEFORE
THE HON'BLE ALOK MATHUR, J.

Trade Tax Revision No. 198 of 2010

The Commissioner, Commercial Tax
 ...Revisionist
Versus
M/S Mahesh & Co., Lucknow
 ...Opposite Party

Counsel for the Revisionist:
Standing Counsel

Counsel for the Respondents:
P.K. Sinha
.................................

Held: Para-

Case Law discussed:

(Delivered by Hon'ble Alok Mathur, J.

1. Heard Sri Rohit Nandan Shukla,
learned
Standing
counsel
for
the
revisionist, who has instant revision as
well as Sri P. K. Sinha appearing for the
respondent.

2. The State has preferred this
revision against the order of Commercial
Tax Tribunal dated 15th November, 2007
whereby the Tribunal has allowed the
appeal preferred by the revisionist.

3. Following questions of law has
been pressed by the revisionist:-

"(i)Whether the Tribunal was
justified in providing the benefit of
exemption of tax to the Respondent
contrary to the findings arrived at by the
Assessing Authority and that too without
considering the adverse material found
during survey dated 4/5th July, 2001 ?

(ii) Whether the Learned Trade
Tribunal was justified in waiving of the
interest which was liable under Section
8(1) on the admitted sale turn over like
admitted tax?

(iii) Whether the judgment and
order passed by the Tribunal is justified
ignoring the facts set out in the assessment
order which was passed strictly in
accordance facts available on records as
also the provisions of the Trade Tax Rules
?"

4. It has been submitted by counsel
for the revisionist that the respondent
/Dealer is engaged in business of betel
nuts,
catechu,
tea,
Ilaichi,
General
merchant etc. A survey was conducted by
the Central Excise Department with regard
to the business place of M/s Harsingar
Gutaka Pvt. Ltd. and M/s Gopal Grinding
Industries on 4th and 5th July, 2001 and
on the inspection it was found that the
owner of the firm M/s Mahesh & Co.(The
respondent/Firm) is also the Director of
M/s
Harshringar
Gutka
and
the
respondent/firm supplied the raw material,
betel nuts, catechu etc. to M/s Harshringar
Gutka Pvt. Ltd. The stock of the
respondent/firm was in Satnam Cold
Storage and on on inspection 200 bags of
betel nuts was found related with M/s
Mahesh and Co.

5. The grinding works of the goods
sent by M/s Mahesh & Co. was being done
by M/s Gopal Grinding Industries and in
the
said
Gopal
Grinding
Industries
difference in stock was found. On the basis
of material collected during aforesaid
inspection the assessing authority rejected