SURESH SINGH, ALIGARH V. ITO WARD-1(1), ALIGARH

ITA 110/AGR/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8529 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 22-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Sale consideration of property below Jantri Value; Period of limitation; Valuation report; Validity of assessment; Reason to believe
• Section: 50C; 142(1); 147; 27; 148; 144

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI LALIET KUMAR, JUDICIAL MEMBER AND DR. MITHA LAL MEENA, ACCOUNTANT MEMBER ITA NO. 110/AGR/2018 ASSESSMENT YEAR: 2009-10 SURESH SINGH, 3/303, MISS GILL COMPOUND, MARRIS ROAD, ALIGARH. PAN : AEOPS7989G (APPELLANT) VS. INCOME - TAX OFFICER, WARD 1(1), ALIGARH. (RESPONDENT) APPELLANT BY SH. PANKAJ GARGH, ADVOCATE RESPONDENT BY SH. WASEEM ARSHAD, SR. DR ORDER PER LALIET KUMAR, J.M.: THIS APPEAL WAS FILED BY THE ASSESSEE, BEING AGGRIE VED BY THE ORDER PASSED BY THE CIT(A) ON 30.10.2017 FOR THE ASSESSMENT YEAR 20 09-10 ON THE FOLLOWING GROUNDS : GROUND NO. 1 (I) BECAUSE THE LD. CIT(A) HAS WRONGLY, ILLEGALLY, ARBITRARILY REJECTED THE SPECIFIC GROUNDS TAKEN OBJECTING THE ISSUANCE AND T HE SERVICE OF NOTICE U/S 148 OF THE INCOME TAX ACT. (II) BECAUSE LD. CIT(A) HAS ERRED BOTH HI LAW AND ON FACTS IN REJECTING THE SPECIFIC GROUND THAT THE ASSESSMENT FRAMED DESERVES TO BE QUASHED AS NOTICE U/S 148 HAS NOT BEEN SERVED ON THE ASSESSEE WITH IN STIPULATED TIME. (III) BECAUSE THE LD. CIT(A) HAS WRONGLY, ILLEGALLY AND ARBITRARILY REJECTED THE APPELLANTS SUBMISSION AND THE SPECIFIC GROUND T HAT NOTICE U/S 148 HAS NOT BEEN RECEIVED. LD. CIT(A) HAS ERRED IS WHOLLY UN JUSTIFIED IN GIVING FINDING THAT THERE IS NO EVIDENCE THAT THE IMPUGNED NOTICE HAS BEEN DATE OF HEARING 01.07.2019 DATE OF PRONOUNCEMENT 10 .07.2019 ITA NO. 110/AGR/2018 2 RETURNED BY POSTAL DEPARTMENT IGNORING THE UNDISPUT ED FACT THAT THE NOTICE SENT AS WRONG AND INCOMPLETE ADDRESS WAS RET URNED BY POSTAL DEPARTMENT WITH THE REMARK 'INCOMPLETE ADDRESS'. (IV) BECAUSE LD. CIT(A) HAS FURTHER ERRED BOTH IN LA W AND ON FACTS IN REJECTING THE SPECIFIC GROUND THAT THE ASSESSMENT F RAMED DESERVES TO BE QUASHED IGNORING THE UNDISPUTED FACT THAT NOTICE U/ S 148 SENT ON WRONG AND INCOMPLETE ADDRESS, CAN NEVER BE SERVED AND CAN NOT BE TAKEN AS NOTICE ISSUED WITHIN TIME. (V) BECAUSE COPY OF THE NOTICE/S 148 DATED 5.3.201 6 SERVED ON THE ASSESSEE ON 28.11.2016 CANNOT BE SAID TO BE VALID S ERVICE IN THE EYES OF LAW AND WITHIN TIME. LD. CIT(A) HAS WRONGLY AND ARBITRAR ILY REJECTED THE APPELLANT SUBMISSION. (VI) BECAUSE PROCEEDINGS INITIATED U/S 147 AND THE CONSEQUENT ISSUANCE OF NOTICE U/S 148 IS WRONG, BAD IN LAW, UNWARRANTED AND WITHOUT JURISDICTION AS NEITHER THERE EXISTS ANY ADVERSE MA TERIAL NOR THERE IS OWN REASON TO BELIEVE OF THE ASSESSING OFFICER. THE LD. CIT(A) HAS ERRED IN LAW IN REJECTING THE SPECIFIC GROUND AND THE SUBMISSION FILED. (VII) BECAUSE THE ASSESSMENT FRAMED IS ALSO WRONG, BAD IN LAW AND WITHOUT JURISDICTION AS REASON RECORDED FOR INITIATING PROC EEDINGS U/S 147 WERE NOT SUPPLIED TO THE APPELLANT BEFORE THE COMPLETION OF THE ASSESSMENT. THE LD. CIT(A) HAS WRONGLY ERRED IN REJECTING APPELLANT SPECIFIC SUBMISSION ON THE ISSUE. (VIII) BECAUSE CONSIDERING THE FACTS OF THE CASE AN D LEGAL POSITION AND THE GROUNDS AS ABOVE THE ASSESSMENT DESERVES TO BE QUAS HED. GROUND NO. 2 : (I) BECAUSE LD. CIT(A) HAS ERRED BOTH IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS,1553649/- UNDER THE HEAD SHORT T ERM CAPITAL GAIN AS AGAINST THE ADDITION OF RS.2491000/-MADE BY THE ASS ESSING OFFICER. (II) BECAUSE LD.CIT(A) HAS FURTHER ERRED IN REJECTI NG THE APPELLANT SUBMISSION AND THE FACTS OF THE CASE THAT THE IMPUG NED PROPERTY WAS ALLOTTED TO THE APPELLANT BY MORADABAD DEVELOPMENT AUTHORITY IN THE YEAR 2004 AND THE PAYMENTS IN INSTALLMENTS WAS MADE FROM F.Y. 2004-05. THUS THE PROFIT, IF ANY, THOUGH NOT ADMITTED, SHOULD HAVE BEEN ASSESSED ITA NO. 110/AGR/2018 3 UNDER THE HEAD LONG TERM CAPITAL GAIN AND BENEFIT O F INDEXED COST SHOULD BE ALLOWED TO THE APPELLANT. LD.CIT(A) HAS WRONGLY, ARBITRARILY REJECTED THE APPELLANT SUBMISSION ON SPECIFIC GROUND AND THE FACTS OF THE CASE. (III) BECAUSE THE LD. CIT(A) HAS WRONGLY, ILLEGALLY AND ARBITRARILY CONFIRMED THE ACTION OF THE ASSESSING OFFICER WHO I NVOKED THE PROVISIONS OF SECTION 50C TO WORKOUT THE INCOME UNDER THE HEAD SH ORT TERM CAPITAL GAIN. (IV) BECAUSE CONSIDERING THE FACTS OF THE EASE AND THE LEGAL POSITION THE ADDITION AS CONFIRMED BY LD. CIT(A) BEING WRONG, BAD IN LAW, UNJUSTIFIABLE, DESERVERS TO BE DELETED. GROUND NO. 3: BECAUSE WITHOUT PREJUDICE TO THE GROUNDS AS MENTION ED ABOVE AND IN THE ALTERNATIVE THE CAPITAL GAIN, IF ANY, TO BE WORKED OUT SHOULD BE ASSESSED UNDER THE HEAD LONG TERM CAPITAL GAIN AND THE BENEF IT OF INDEXED COST SHOULD BE ALLOWED. 2. THE ASSESSEE HAS FILED AN APPLICATION FOR ADMISSION OF ADDITIONAL GROUNDS, WHICH ARE AS UNDER : 1. BECAUSE THE ADDITION MADE BY THE ASSESSING OFFI CER INVOKING PROVISIONS OF SECTION 50C OF THE I.T ACT AND CONFIRMED BY LD, C IT(A) IS WRONG, BAD IN LAW, UNJUSTIFIED AND WITHOUT JURISDICTION AS THE AS SESSING OFFICER HAS NOT REFERRED THE ISSUE TO THE VALUATION OFFICER TO OBTA IN THE VALUATION REPORT. 2. BECAUSE IN THE ABSENCE OF THE REFERENCE TO THE V ALUATION OFFICER AND THE VALUATION REPORT THE ADDITION MADE BEING WRONG, ARB ITRARY AND BAD IN LAW DESERVES TO BE DELETED. 3. IT WAS SUBMITTED THAT THESE GROUNDS ARE LEGAL IN NATURE AND THEREFORE THE SAME ARE REQUIRED TO BE ADMITTED BY THE TRIBUNAL. R ELIANCE IS PLACED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF N ATIONAL THERMAL POWER CO. LTD. VS. CIT, 229 ITR 383. THE LD. DR HAS NOT OBJECTED T O THE ADMISSION OF THESE TWO GROUNDS. ACCORDINGLY, THE ADDITIONAL GROUNDS NOS. 1 & 2 ARE ADMITTED. ITA NO. 110/AGR/2018 4 4. AT THE OUTSET, THE LD. AR HAD SUBMITTED THAT THE NOTICE ISSUED U/S. 148 DATED 15.03.2016 WAS NOT SERVED ON THE ASSESSEE, AS THE A DDRESS GIVEN IN THE NOTICE WAS INCOMPLETE. FOR THAT PURPOSE, OUR ATTENTION WAS DRA WN ON THE ORDER OF THE ASSESSING OFFICER WHERE THE ADDRESS OF THE ASSESSEE AT PAGE 2 WAS MENTIONED AS UNDER : SURESH SINGH MARRIS ROAD ALIGARH-202001 IT WAS SUBMITTED BY THE LD. AR THAT AS PER REQUIREM ENT OF SECTION 148, THE NOTICE IS REQUIRED TO BE SERVED BEFORE COMPLETION OF ASSESSME NT PROCEEDINGS AND AFTER THE SERVICE OF NOTICE, THE ASSESSEE IS REQUIRED TO FILE RETURN OF INCOME AND TO AVAIL OTHER STATUTORY RIGHTS WHICH ARE AVAILABLE TO THE ASSESSE E, NAMELY, TO ASK FOR THE REASONS FOR REOPENING U/S. 148 AND TO FILE OBJECTIONS, IF A NY, ON THE REOPENING AFTER RECEIVING THE REASONS FOR REOPENING. THEREFORE, IT WAS THE DU TY OF THE AO TO PASS A REASONED ORDER DEALING WITH THE OBJECTIONS OF THE ASSESSEE I N THE LIGHT OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFT S (INDIA) LTD., 259 ITR 19 (SC). IT WAS SUBMITTED THAT BEFORE THE LD. CIT(A), THE AS SESSEE HAD RAISED THE SPECIFIC GROUND WHICH WAS MENTIONED AT PAGE 12 TO 13 TO THE FOLLOWING EFFECT: 1. BECAUSE THE ORDER PASSED U/S. 144/147 OF IT ACT BY THE LD. AO IS WRONG, ILLEGAL AND CONTRARY TO THE FACTS. 2. BECAUSE THE NOTICE ISSUED BY THE LD. A.O. U/S 14 8 OF THE I.T. ACT IS WITHOUT OF APPLICATION OF MIND AND HENCE THE ASSESS MENT PASSED U/S 144/147 OF IT. ACT IS ILLEGAL, BAD IN THE EYE OF LAW AND UNWARRANTED. 3. BECAUSE THE NOTICE ISSUED U/S 148 OF I.T. ACT DAT ED 15/03/2016 NEVER SERVED ON THE APPELLANT WITH IN STIPULATED TIME BUT SERVED ON 28/11/2016, DULY ADMITTED BY THE A.O. IN HIS ORDER, WHICH WAS B ARRED BY LIMITATION. ITA NO. 110/AGR/2018 5 4. BECAUSE THE LD. A.O. HAS FAILED TO APPRECIATE TH AT ANY NOTICE SERVED ON BEYOND PRESCRIBED LIMIT OF TIME IS ILLEGAL, UNWARRA NTED AND HENCE THEREAFTER ORDER PASSED U/S 144/147IS WRONG AND ILL EGAL, DESERVES TO BE QUASHED AS SUCH. 5. BECAUSE THE NOTICE ISSUED BY THE LD. A.O EITHER U/S 148 OR 142(1) SENT AT INCOMPLETE ADDRESS AND NEVER SERVED ON THE APPELLAN T. 6. BECAUSE THE LD. A.O. HAS FAILED TO APPRECIATE TH AT THE APPELLANT HAD FILED HIS RETURN OF INCOME IN PHYSICAL FORM AND COMPLETE POSTAL ADDRESS DULY MENTIONED THEREIN. HOWEVER, DESPITE RAISING THE SPECIFIC GROUNDS BY T HE ASSESSEE, THE LD. CIT(A) HAS DISMISSED THE GROUNDS ON THE BASIS OF ASSUMPTION. T HE ORDER PASSED BY THE LD. CIT(A) TO THIS EFFECT IS SCANNED AND REPRODUCED HER EUNDER : 8.2 DECISION ON BASIS OF THESE GROUNDS THE APPELLANT HAS CHALLEN GED THE LEGALITY OF ASSESSMENT ORDER. APPELLANT SUBMISSION THAT THE ASSESSING OFFI CER HAS ISSUED NOTICE ON INCOMPLETE ADDRESS DUE TO WHICH THE NOTICE HAS NOT BEEN RECEIVED BY HIM. APPELLANT SUBMITTED THAT HE FILED HIS RETURN ON 30.09.2009 IN WHICH THERE WAS COMPLETE ADDRESS AND IN SPITE OF THIS THE NOTICE HAS BEEN IS SUED ON INCOMPLETE ADDRESS. APPELLANT SUBMITTED THAT NOTICE U/S 148 HAS NOT BEE N RECEIVED WITHIN THE PRESCRIBED TIME LIMIT AND HENCE THE ASSESSMENT PROC EEDINGS SHOULD BE DECLARED VOID AB-INITIO. I HAVE CONSIDERED ALL THE FACTS AND CIRCUMSTANCES T HE ASSESSING OFFICER ISSUED NOTICE U/S 148 ON 15.03.2016 AND WAS SENT BY POST. THERE I S NO EVIDENCE THAT THE SAID NOTICE HAS BEEN RETURNED BY THE POSTAL DEPARTMENT. HENCE IT IS NOT PROVED THAT THE ADDRESS ON WHICH NOTICE WAS SENT BY ASSESSING OFFIC ER WAS WRONG OR INCOMPLETE. IF IT IS TAKEN THAT THE ADDRESS WAS INCOMPLETE THAT IT MA Y BE POSSIBLE THAT THE POSTAL DEPARTMENT AFTER GETTING THE COMPLETE ADDRESS OF TH E APPELLANT MAY HAVE SERVED THE NOTICE. IF IT IS NOT SO THEN ALSO THE LEGALITY OF T HE ASSESSMENT PROCEEDINGS SHOULD NOT BE QUESTIONED BECAUSE IT IS UNDISPUTED THAT THE ASS ESSING OFFICER ISSUED THE NOTICE ON 15.03.2016. ACCORDING TO THE PROVISIONS OF INCOM E TAX ACT THE TIME LIMIT OF ISSUANCE OF NOTICE IS PRESCRIBED BUT SO FAR AS SERV ICE OF NOTICE IS CONCERNED NO TIME LIMIT IS MENTIONED. HENCE, THERE IS NO GROUND TO CH ALLENGE THE LEGALITY OF ASSESSMENT PROCEEDINGS. ON THE ABOVE OBSERVATION THESE GROUNDS ARE BEING D ISMISSED. ITA NO. 110/AGR/2018 6 5. IT WAS SUBMITTED BEFORE US THAT IT IS THE DUTY O F THE ASSESSING OFFICER TO SERVE THE NOTICE BEFORE INVOKING THE JURISDICTION U/S. 14 8. AS THE NOTICE WAS NOT SERVED, THERE WAS JURISDICTIONAL ERROR IN INVOKING THE PROV ISIONS OF SECTION 147/148. HENCE, ENTIRE EXERCISE UNDERTAKEN BY THE ASSESSING OFFICER WAS WITHOUT JURISDICTION. THE LD. AR HAS ALSO MADE LEGAL SUBMISSIONS IN SUPPORT OF TH E GROUNDS. HOWEVER, THE BENCH HAS INDICATED TO THE PARTIES THAT THE BENCH WOULD O NLY BE CONSIDERING THE LEGAL GROUND ON VALIDITY OF INITIATION OF PROCEEDINGS U/S . 148 IN RESPECT OF VALIDITY OF SERVICE OF NOTICE UPON THE ASSESSEE. 6. PER CONTRA, THE LD. DR HAS VEHEMENTLY OPPOSED TH E GROUNDS RAISED BY THE ASSESSEE AND HAS SUBMITTED THE WRITTEN SUBMISSIONS. ON FACTS IT WAS SUBMITTED AS UNDER : 'THE SHOW CAUSE NOTICE DATED 09.01.2015 ISSUED UNDE R SECTION 144 WAS DISPATCHED BY THE A.O. VIDE HIS OFFICE'S DISPATCH NO. 1175 ON 16.01.2015 FIXING THE DATE OF COMPLIANCE AS 27.01.2015. THE ORDER SHEET IN THE AS SESSMENT FOLDER CONFIRMS THE FACT OF ISSUE OF THIS SHOW-CAUSE NOTICE AS WELL AS THE FACT THAT NO COMPLIANCE WAS MADE THERETO BY THE APPELLANT ON 27,01.2015. ADDITI ONALLY, IT IS SEEN THAT THREE NOTICES ISSUED UNDER SECTION 142(1) ON 09.06.2014, 10.09.2014 AND 19.11.2014 WERE SENT BY THE A.O. TO THE APPELLANT PRIOR TO THE SAID SHOW CAUSE NOTICE DATED 09.01.2015 AND NONE OF THOSE CAME BACK UN-SERVED AN D ALSO NONE OF THOSE WERE RESPONDED TO BY THE APPELLANT. HENCE, THE APPELLANT'S CONTENTION THAT THE SHOW-CAU SE NOTICE DATED 09.01.2015 REMAINED TO BE SERVED ON THE APPELLANT AS HE WAS NO T PRESENT AT AGRA BECAUSE OF HIS JOB IN THE ARMY, IS NOT PROVED FROM FACTS. 'ASSESSMENT PROCEEDINGS IN YOUR CASE IS PENDING WIT H THE UNDERSIGNED FOR THE A.Y. 2007-08 AS THE NOTICE U/S 148 OF THE INCOM E TAX ACT, 61 FOR THE A.Y. 2007-08 WAS ISSUED BY THIS OFFICE IN YOUR CASE ON 2 4/03/2014 AND SERVED UPON YOU ON 26/03/2014 THROUGH SPEED POST. AS PER T HIS OFFICE RECORD, NO RETURN OF INCOME FOR THE A.Y. 2007-08 HAS BEEN FILE D BY YOU IN COMPLIANCE TO THE ABOVE REFERRED NOTICE. THE LD. DR HAD RELIED UPON THE FOLLOWING DECISIONS : (I). PR. CIT VS. JAKHOTIA PLASTICS, 94 TAXMANN.COM 89 (DELHI HC) (II). NAR SINGH VS. STATE OF HARYANA DATED 11.11.2 014 (SC) ITA NO. 110/AGR/2018 7 (III). CIT VS. PEARL MECHANICAL ENGINEERING, 179 ITR 144 (P&H) (IV). CIT VS. JAI PRAKASH SINGH, 1996 AIR 1303 (SC ) (V). ITO VS. SHAHID ATIQ L/H OF LATE ATIQUER, 89 I TD 489(DEL. ITAT) (VI). R.K. UPADHYAA VS. SHANABHAI P. PATEL, 1987 A IR 1378 (SC) (VII). CIT VS. SUDEV INDUSTRIES LTD. (ITA NO. 805/ 2005-DEL-HC) (VIII). ITO VS. SHRI LAL CHAND AGARWAL (ITA NO. 16 9/AGRA/2007- ITAT AGRA) (IX). CIT VS. JAGAT NOVEL EXHIBITORS DATED 08.02.2 012(ITA 07/2006-DEL. HC) (X). N. GOVINDARAJU (ITA NO. 504/2013 KARNATAKA HC) (XI). PR. CIT VS. M/S. MODINAGAR ROLLS LTD. (ITA N O. 275 OF 2015 ALLD. HC) (XII) CIT VS. HARSINGAR GUTKHA PVT. LTD. (ITA NO. 34 OF 2010 ALLD. HC) (XIII). AJAY KAPOOR VS. CIT (2018) 93 TAXMANN.COM 433 (J&K) 7. IT WAS SUBMITTED THAT THERE IS DISTINCTION BETWE EN THE SERVICE OF NOTICE AND ISSUANCE OF NOTICE. THE REQUIREMENT OF LAW IS TO IS SUE THE NOTICE BEFORE 31.03.2016 AND IN THE PRESENT CASE, THE NOTICE WAS ISSUED PRIO R TO 31.03.2016 AND THERE IS NO REQUIREMENT OF LAW TO SERVE THE NOTICE BEFORE REOPE NING. THE REQUIREMENT OF LAW IS TO SERVE THE NOTICE BEFORE FINALIZATION OF ASSESSME NT PROCEEDINGS. IT WAS FURTHER SUBMITTED THAT AS PER DECISION OF HONBLE ALLAHABAD HIGH COURT, IT IS MERELY AN IRREGULARITY WHICH CANNOT INVALIDATE THE PROCEEDING S U/S. 148. 8. IN REBUTTAL, THE LD. AR RELIED UPON THE FOLLOWIN G JUDGMENTS : (I). ACIT VS. VINDHYA TELELINKS LTD., 107 TTJ 149 (TM)(ITAT JABALPUR) (II). NIRMALA GHAZIABAD VS. ITO (ITAT DELHI) (III). SANJAY CHAUBEY HUF (ITA NO. 140/A/18 ITAT AGRA) (IV). ACIT VS. LALITHA KARAN (ITA NO. 1130/HYD/201 5) ITAT HYD. (V). HARI OM GARG VS. ITO (ITA NO. 342/AGRA/2017- ITAT AGRA) 9. WE HAVE HEARD THE RIVAL CONTENTIONS OF THE PARTI ES AND PERUSED THE RECORD. SINCE WE ARE DECIDING THE TECHNICAL ISSUE AS MENTIO NED ABOVE, HENCE, WE ARE NOT REFERRING TO ANY OTHER LEGAL SUBMISSIONS IN RESPECT OF OTHER GROUNDS OF APPEAL. FIRSTLY, THE ASSESSING OFFICER IN THE ASSESSMENT OR DER MENTIONED THE ADDRESS AS MARRIS ROAD, ALLIGARH 202001 ON WHICH THE NOTIC E U/S. 148 WAS ISSUED, WHEREAS ITA NO. 110/AGR/2018 8 THE ASSESSEE HAD BROUGHT ON RECORD ACKNOWLEDGEMENT OF RETURN OF INCOME FILED BY THE ASSESSEE WHEREIN THE CORRECT ADDRESS WAS MENTIO NED AS 3/303, MARRISH ROAD, MISS GIL COMPOUND, ALIGARH (UP). IT IS NOT THE CASE OF AO THAT THE ASSESSING OFFICER WAS NOT AWARE OF THE CORRECT ADDRESS, AS THE ASSESS ING OFFICER SUBSEQUENTLY, WHEN ISSUED NOTICE U/S. 142(1) HAS RIGHTLY MENTIONED TH E CORRECT ADDRESS AS SHRI SURESH SINGH, 3/303, MISS GILL COMPOUND, MARRIS ROAD, ALIG ARH. AT PAGE 12 OF THE PAPER BOOK FILED BY THE ASSESSEE, THE ASSESSEE HAS CATEGO RICALLY MENTIONED THAT THE NOTICE ISSUED ON 15.03.2016 U/S. 148, AND NOTICE ISSUED U/ S. 142(1) ON 18.04.2016, 09.05.2016, 13.05.2016 AND 20.06.2016 WERE REMAINED UN-SERVED, AS THESE NOTICES WERE SENT ON INCOMPLETE ADDRESS WHEREAS NOTICE ISSU ED ON 25.10.2016 WAS SERVED ON THE ASSESSEE, AS IT WAS ISSUED AT CORRECT ADDRES S. HOWEVER, DESPITE BRINGING THE ABOVE FACTS INTO THE NOTICE OF LOWER AUTHORITIES (A O & CIT), THEY DID NOT BOTHER TO COMPLY WITH THE PROVISIONS OF LAW. WE FAIL TO APPRE CIATE AS TO ON WHAT BASIS THE LD. CIT(A) HAS DECIDED THAT THE NOTICE WOULD HAVE BEEN SERVED ON THE ASSESSEE AFTER COLLECTING THE CORRECT ADDRESS BY THE POSTAL AUTHOR ITIES. THE LAW IS NOT WORKING ON THE PRESUMPTION. THE LAW IS WORKING ON CERTAINTY AN D PREDICTABILITY. WE DO NOT COMPREHEND THAT THE NOTICE WOULD BE SERVED BY THE P OSTAL AUTHORITIES ON ITS OWN AT THE ASSESSEE IN ABSENCE OF CORRECT ADDRESS. IN OUR VIEW ONCE CORRECT ADDRESS IS AVAILABLE WITH THE REVENUE AUTHORITIES, THEN IT IS A DUTY OF THE REVENUE AUTHORITIES TO SERVE THE NOTICE AT THE CORRECT ADDRESS. THE LD. CIT(A) HAS NOT BROUGHT ON RECORD ANY CERTIFICATION FROM THE POSTAL AUTHORITIES SUGGE STING THAT THE NOTICE WAS SERVED BY THE POSTAL AUTHORITIES IN SPITE OF INCOMPLETE AD DRESS. IN ABSENCE OF ANY COGENT AND RELIABLE EVIDENCE, WE HAVE NO OPTION BUT TO REL Y UPON THE ASSESSEES VERSION. IN VIEW OF ABOVE SAID FACTS, WE ARE OF THE OPINION THA T THE NOTICE U/S. 148 HAS NOT BEEN SERVED UPON THE ASSESSEE AND THEREFORE, THERE IS ER ROR IN ASSUMING OF THE JURISDICTION TO REOPEN THE CASE. ITA NO. 110/AGR/2018 9 10. THE ARGUMENT OF THE LD. DR THAT THE REQUIREMENT OF SECTION 148/147 IS MET IF THE NOTICE IS MERELY ISSUED BY THE ASSESSING OFFICE R. IN OUR CONSIDERED OPINION, THE LAW IS REQUIRED TO BE INTERPRETED IN THE WAY IT WAS SOUGHT TO BE ENACTED BY THE LEGISLATURE, I.E., THE PURPOSE OF PROVIDING THE SE RVICE OF NOTICE IS TO ENSURE TIMELY ISSUANCE OF NOTICE BY REVENUE, BUT ALSO VALUABLE RI GHT ENURE IN FAVOUR OF ASSESSEE IF NOTICE IS NOT SERVED ON THE ASSESSEE. THE STRICT RU LE OF INTERPRETATION IS REQUIRED TO BE APPLIED AND ONCE THE LAW REQUIRES THAT THE NOTIC E IS REQUIRED TO BE SERVED THEN NO OTHER INTERPRETATION CAN BE IN THE STATUTE. SINCE I N THE INSTANT CASE, NOTHING IS BROUGHT ON RECORD THAT THE NOTICE WAS SERVED UPON T HE ASSESSEE, THEREFORE, WE DO NOT FIND ANY FORCE IN THE SUBMISSIONS MADE BY THE L D. DR. 10.1. THE CONTENTION OF THE LD. DR THAT BY PARTICIP ATION IN THE PROCEEDINGS SUBSEQUENTLY PURSUANT TO THE NOTICE DATED 25.10.201 6, THE ASSESSEE WAS DEBARRED FROM CHALLENGING THE ISSUE OF NOTICE AS THE NOTICE WAS RECEIVED BY THE ASSESSEE ON 28.11.2016, IS OF NO CONSEQUENCE. AS PER LAW, THE N OTICE IS REQUIRED TO BE ISSUED ON OR BEFORE 31.03.2016 FOR THE ASSESSMENT YEAR 2009-1 0, AS THE RETURN OF INCOME FOR THIS YEAR WAS FILED BY THE ASSESSEE ON 30.09.2009 A ND THEREFORE, IF WE UPHOLD THE ARGUMENTS OF THE LD. DR THAT THE NOTICE WHICH WAS S UBSEQUENTLY RECEIVED BY THE ASSESSEE ON 28.11.2016 AS CORRECT, THEN THE PURPOSE OF PROVIDING THE LIMITATION BY THE ACT WOULD BECOME REDUNDANT AND OTIOSE. THE BENC H IS DUTY BOUND TO GIVE MEANINGFUL INTERPRETATION TO VARIOUS PROVISIONS OF THE IT ACT INCLUDING THE PROVISIONS OF ISSUANCE OF NOTICE. ONCE, THE NOTICE IS SERVED UPON THE ASSESSEE BEYOND THE PERIOD STIPULATED UNDER THE ACT THEN THAT NOTIC E WOULD BE TREATED TO HAVE BEEN SERVED BEYOND THE PERIOD OF LIMITATION AND HENCE, T HERE IS JURISDICTIONAL ERROR IN VIEW OF SECTION 149 OF THE IT ACT. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY MERIT IN THE SUBMISSIONS MADE BY THE LD. DR AND THE RELIANCE PLACED BY THE LD. DR ON VARIOUS ITA NO. 110/AGR/2018 10 DECISIONS OF JURISDICTIONAL AS WELL AS OTHER HIGH C OURTS IS OF NO CONSEQUENCE, AS THE FACTS IN ALL THE CASES WERE DIFFERENT. 10.2. THE DECISION IN THE CASE OF PR. CIT VS. JAKHO TIA PLASTICS, 94 TAXMANN.COM 89 (DELHI HC) RELIED BY THE LD. DR, WAS NOT PERTAINING TO SERVICE OF NOTICE ON THE ASSESSEE. RATHER, IT WAS A CASE FOR SUPPLYING THE R EASONS FOR REOPENING, WHEREAS THE IN THE CASE OF BEFORE US NO SUCH ISSUE IS INVOLVED. THEREFORE, THIS DECISION IS NOT APPLICABLE TO THE PRESENT CASE. 10.3 THE DECISION IN THE CASE OF NAR SINGH VS. STAT E OF HARYANA (SUPRA) IS ALSO NOT APPLICABLE TO THE FACTS AND CIRCUMSTANCES OF THE CA SE. 10.4 IN THE CASE OF CIT VS. PEARL MECHANICAL ENGINE ERING, 179 ITR 144 (P&H), THE ASSESSEE HAS NOT COMPLIED WITH THE NOTICE U/S. 142( 1) OF THE ACT AND AS THE ASSESSEE HAS NOT COMPLIED WITH THE NOTICE, THE HONBLE HIGH COURT HAS REJECTED THE CONTENTION OF THE ASSESSEE. IN THE PRESENT CASE, IMMEDIATELY A FTER THE RECEIPT OF NOTICE BY THE ASSESSEE ON 28.11.2016 U/S. 142(1), THE ASSESSEE HA D SUBMITTED THAT HE HAD NOT RECEIVED THE NOTICE U/S. 148 OF THE ACT AND THEREFO RE, THE PROCEEDINGS ARE REQUIRED TO BE VITIATED. THEREFORE, THE FACTS OF THE PRESENT CASE ARE DIFFERENT FROM THE FACTS IN THE MATTER OF CIT VS. PEARL MECHANICAL ENGINEERING (SUPRA). 10.5 THE DECISION IN THE CASE OF CIT VS. JAI PRAKAS H SINGH, 1996 AIR 1303 (SC) IS ALSO NOT APPLICABLE BECAUSE THE FACTS ARE NOT PERTA INING TO THE ISSUE UNDER CONSIDERATION. 10.6 THE DECISION IN THE CASE OF ITO VS. SHAHID ATI Q L/H OF LATE ATIQUER, 89 ITD 489(DEL. ITAT) IS ALSO NOT APPLICABLE TO THE PRESEN T CASE AS IN THE SAID CASE, ONE OF ITA NO. 110/AGR/2018 11 THE LEGAL HEIRS AFTER RECEIPT OF THE NOTICE U/S. 14 8 HAD PARTICIPATED IN THE ASSESSMENT PROCEEDINGS AND HAD NOT RAISED ANY OBJECTION WITH R ESPECT TO THE ILLEGAL ASSUMPTION OF JURISDICTION. IN THE PRESENT CASE, AS STATED HER EINABOVE, THE ASSESSEE IN THE FIRST INSTANCE AFTER THE RECEIPT OF NOTICE ON 28.11.2016 HAS RAISED THE OBJECTION OF ASSUMPTION OF JURISDICTION AND HAD SUBMITTED THAT N O NOTICE U/S. 148 WAS RECEIVED. PRESENT CASE IS NOT OF PARTICIPATION IN THE PROCEED INGS WITHOUT ANY OBJECTION, RATHER THE CASE OF RAISING THE OBJECTIONS BEFORE THE LOWER AUTHORITIES AS TO THE WRONG ASSUMPTION OF JURISDICTION. 10.7 CIT VS. SUDEV INDUSTRIES LTD. (ITA NO. 805/200 5-DEL-HC): IN THIS CASE, THE ASSESSEE HAD RAISED THE GROUND OF IMPROPER SERVICE FOR THE FIRST TIME BEFORE THE TRIBUNAL AND THEREFORE, THE HIGH COURT HAS HELD THA T AFTER PARTICIPATING IN THE ASSESSMENT PROCEEDINGS BEFORE THE LOWER AUTHORITIES , IT DOES NOT LIE IN THE MOUTH OF THE ASSESSEE TO SAY THAT NOTICE HAS NOT BEEN SERVED . IN THE PRESENT CASE, NOTICE WAS NOT ISSUED AT THE CORRECT ADDRESS AND THEREFORE, TH E PRESUMPTION RAISED U/S. 27 OF THE GENERAL CLAUSES ACT CANNOT BE PRESUMED IN LAW O F SERVICE OF NOTICE UPON THE ASSESSEE IN THE ABSENCE OF ISSUING THE NOTICE AT TH E CORRECT ADDRESS. THEREFORE, THIS DECISION IS ALSO NOT APPLICABLE. 10.8 THE DECISION IN THE CASE OF CIT VS. JAGAT NOVE L EXHIBITORS DATED 08.02.2012(ITA 07/2006-DEL. HC) IS ALSO DIFFERENT. AS MENTIONED IN PARA 11 OF THE DECISION, THE NOTICE WAS ISSUED BY REGISTERED POST AT THE LOCAL ADDRESS OF THE ASSESSEE AND THEREAFTER IN RESPONSE TO THE NOTICE U /S. 142(1) AND 143(2) THE RETURN OF INCOME WAS FILED STATING THAT THE ORIGINAL RETUR N FILED FOR THE ASSESSMENT YEAR 1989-90 SHOULD BE TREATED AS RETURN FILED IN PURSUA NCE TO THE NOTICE U/S. 148. AS MENTIONED HEREINABOVE, IT WAS A CASE OF SENDING THE NOTICE AT CORRECT LOCAL ADDRESS. IN THE PRESENT CASE, NOTICE WAS SENT AT INCOMPLETE ADDRESS. THEREFORE, NO ITA NO. 110/AGR/2018 12 PRESUMPTION OF SERVICE OF NOTICE CAN BE RAISED IN V IEW OF SECTION 27 OF THE GENERAL CLAUSES ACT, AS THE NOTICE WAS SENT AT INCOMPLETE A DDRESS OF THE ASSESSEE. 10.9 THE DECISION IN THE CASE OF PR. CIT VS. M/S. M ODINAGAR ROLLS LTD. (ITA NO. 275 OF 2015 ALLD. HC) IS ALSO NOT APPLICABLE TO THE P RESENT CASE, AS THE ASSESSEE HAD RAISED THE ADDITIONAL GROUND BEFORE THE TRIBUNAL FO R THE FIRST TIME OBJECTING TO THE VALIDITY OF NOTICE U/S. 148. 10.10. THE JUDGMENT IN THE CASE OF CIT VS. HARSINGA R GUTKHA PVT. LTD. (ITA NO. 34 OF 2010 ALLD. HC) IS ALSO NOT APPLICABLE IN TH E PRESENT CASE, AS IN THE SAID CASE, NOTICE WAS NOT SERVED UPON THE ASSESSEE THROUGH REG ISTERED POST, BUT WAS SERVED UPON THE ASSESSEE THROUGH PROCESS SERVER AND WAS RE CEIVED BY THE OFFICER OF THE ASSESSEE. PURSUANCE TO THAT, THE OFFICER OF ASSESSE E PARTICIPATED IN THE ASSESSMENT PROCEEDINGS. THE FACTS ARE DIFFERENT, AS THE PRESEN T CASE IS OF NON-SERVICE OF NOTICE EITHER BY REGISTERED POST OR THROUGH PROCESS SERVER . 11. THE ASSESSEE HAD ALSO RELIED UPON CERTAIN DECIS IONS OF TRIBUNAL. HOWEVER, WE FIND THAT THE DECISION ENTERED BY THE DELHI HIGH CO URT IN THE CASE OF CIT VS. CHETAN GUPTA, 62 TAXMANN.COM 249 (DELHI) AND THE DECISION IN THE MATTER OF PCIT VS. SILVER LINE, 65 TAXMAN.COM 137 ARE SQUARELY APPLICABLE TO THE FACTS OF THE CASE, WHEREIN THE HONBLE HIGH COURT AFTER CONSIDERING PLETHORA O F JUDGMENTS HAS COME TO THE CONCLUSION THAT SERVICE OF NOTICE U/S. 148 IS SINE QUA NON FOR REOPENING OF ASSESSMENT AND THE NOTICE SHOULD HAVE BEEN ISSUED W ITHIN THE STATUTORY PERIOD AS CONTEMPLATED IN LAW. FURTHER, THE HONBLE HIGH COUR T IN PARAGRAPH NO. 20 HAD RECORDED THAT BECAUSE THE ASSESSEE MERELY PARTICIPA TED IN THE PROCEEDINGS THAT WILL NOT OBLIVIATE MANDATORY REQUIREMENT OF SERVICE OF N OTICE BY THE ASSESSING OFFICER UPON THE ASSESSEE. IN VIEW OF THE ABOVE THERE IS NO ATTEMPT ON THE PART OF THE ITA NO. 110/AGR/2018 13 ASSESSING OFFICER TO SERVE ON THE ASSESSEE EITHER T HROUGH REGISTERED POST OR THROUGH OTHER MODE. THEY HAVE WRONGLY ASSUMED JURISDICTION U/S. 147/148. THEREFORE, THERE IS JURISDICTIONAL ERROR. HENCE, THE APPEAL OF ASSES SEE IS LIABLE TO BE ALLOWED. 12. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (DR. MITHA LAL MEENA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10/07/2019 *AKS* COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA