Ajit Kumar Lakra, Ludhiana V. DCIT, Ludhiana

ITA 1108/CHANDI/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95571 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 11 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 30-09-2015
• Assessment Year: 1998-1999
• Appeal Filed On: 29-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUSHIL VERMAN
• Assessee Lawyers: SUBHASH AGGARWAL
• Keywords: Non compliance; Assessment record
• Section: 148; 12; 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS.ANNAPURNA MEHROTRA, ACCOUNTANT MEMBER ITA NO. 1108/CHD/2012 ASSESSMENT YEAR: 1998-99 SHRI AJIT KUMAR LAKRA, VS THE DCIT, 269, INDUSTRIAL AREA-A, CIRCLE VII, LUDHIANA. LUDHIANA. PAN: AAOPL5645E (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUBHASH AGGARW AL RESPONDENT BY : SHRI SUSHIL VERMAN DATE OF HEARING : 30.09.2015 DATE OF PRONOUNCEMENT : 09.10.2015 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. CIT(APPEALS)-II LUDHIANA DATED 29.08.2012 FO R ASSESSMENT YEARS 1998-99. 2. THE ASSESSEE INITIALLY RAISED THREE GROUNDS OF A PPEAL, HOWEVER LATER ON, REVISED GROUNDS OF APPEAL WERE FI LED. 3. THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS G ROUND NO. 2 & 3 OF THE REVISED GROUNDS OF APPEAL. THE SA ME ARE, THEREFORE, DISMISSED AS NOT PRESSED. 2 4. ON REVISED GROUND NO.1, THE ASSESSEE CHALLENGED THE NOTICE UNDER SECTION 147/148 OF THE ACT AS THE SAME WAS NOT PROPERLY/LEGALLY SERVED UPON ASSESSEE. THE ISSU E IN THE PRESENT APPEAL IS THEREFORE, CONFINED TO ONE AS PECT ONLY WHETHER NOTICE UNDER SECTION 148 WAS PROPERLY/LEGALLY SERVED UPON ASSESSEE ? 5. THE BRIEF FACTS WITH REGARD TO THE ISSUE INVOLVE D IN THE PRESENT APPEAL ARE THAT THE ORIGINAL RETURN OF INCOME DECLARING INCOME OF RS. 3,90,400/- WAS FILED BY ASS ESSEE ON 02.11.1998 AND THE CASE WAS PROCESSED. LATER ON , NOTICE UNDER SECTION 148 WAS ISSUED AND SERVED ON 30.03.2005. NO RETURN WAS FILED IN RESPONSE WITHIN THE STIPULATED PERIOD. LATER ON, NOTICE UNDER SECTION 142(1) WAS ISSUED AND SERVED ON THE ASSESSEE ON 22.10.2005 AND THE ASSESSEE FILED THE RETURN ON 22.11.2005 DECLARI NG THE SAME INCOME AS PER ORIGINAL RETURN OF INCOME. THE ASSESSEE OBJECTED TO THE ISSUE OF NOTICE UNDER SECT ION 148 WHICH WAS DECIDED BY ASSESSING OFFICER. IT IS NOTE D IN THE ASSESSMENT ORDER THAT INFORMATION WAS PASSED ON BY THE DDIT (INVESTIGATION) CHANDIGARH THAT ASSESSEE HAS MANAGED TO PROCURE RS. 20 LACS IN 4 DEMAND DRAFTS F ROM SHRI N.K. GARG AND WAS SUPPLYING ACCOMMODATION ENTR IES. THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER I N DETAIL UNDER SECTION 143(3) DATED 29.03.2006 AND MA DE ADDITION OF RS. 32 LACS ON ACCOUNT OF UNDISCLOSED I NCOME OF ASSESSEE. FURTHER ADDITION OF RS. 30,000/- WAS MADE ON ACCOUNT OF COMMISSION AND BANK CHARGES AND INCOM E 3 WAS COMPUTED AT RS. 36,20,400/-. THIS ORDER WAS CHALLENGED BEFORE LD. CIT(APPEALS) WHO HAD DECIDED THE APPEAL OF ASSESSEE VIDE ORDER DATED 26.09.2006 AND DISMISSED THE APPEAL OF THE ASSESSEE. THE ASSESSEE PREFERRED APPEAL BEFORE ITAT CHANDIGARH BENCH IN IT A 824/2006. THE ASSESSEE CHALLENGED THE VALIDITY OF ASSUMPTION OF JURISDICTION BY THE ASSESSING OFFICER TO MAKE THE IMPUGNED ASSESSMENT ORDER UNDER SECTION 147/148 OF THE ACT AS WELL AS ADDITIONS OF RS. 32,0 0,000/- AND RS. 30,000/-. THE TRIBUNAL VIDE ORDER DATED 28.11.2008 RESTORED THE ADDITION ON MERIT TO THE FI LE OF ASSESSING OFFICER FOR ADJUDICATION AFRESH KEEPING I N MIND THE DIRECTIONS IN THE ORDER OF SHRI BALJEET TRIKHA. AS FAR AS THE OBJECTIONS WITH REGARD TO SERVICE OF NOTICE UNDER SECTION 148 OF THE ACT IS CONCERNED, THE TRIBUNAL A LSO RESTORED THIS MATTER TO THE FILE OF ASSESSING OFFIC ER FOR FRESH ADJUDICATION. THE FINDINGS OF TRIBUNAL IN PA RA 9 OF THE ORDER IS REPRODUCED AS UNDER : 9. IN SO FAR AS THE OBJECTIONS OF THE ASSESSEE RELATING TO THE ISSUANCE AND SERVICE OF NOTICE U/S 147/148 OF THE ACT IS CONCERNED, THE SAME ARE ALSO REQUIRED TO BE ADDRESSED BY THE ASSESSING OFFICER IN THE ENSUING ASSESSMENT PROCEEDINGS. THE FINDINGS OF THE CIT(APPEALS) ON THESE ASPECTS ARE, THEREFORE SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER. AT THIS STAGE, WE MAY MAKE A MENTION THAT THE ASSESSEE HAS CHALLENGED THE SERVICE OF NOTICE U/S 148. THIS ISSUE, IN OUR OPINION, HINGES ON FACTUAL ASPECTS AND THE SAME 4 CAN BE DECIDED ON THE BASIS OF THE MATERIAL AVAILABLE ON ASSESSMENT FOLDER, WHICH IS NOT AVAILABLE BEFORE US. HENCE, ON OVERALL CONSIDERATIONS, WE HAVE DECIDED TO SET ASIDE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION AFRESH. 6. THE ASSESSING OFFICER PASSED THE FRESH ASSESSMEN T ORDER UNDER SECTION 143(3) DATED 16.12.2009. THE ASSESSING OFFICER WITH REGARD TO THE SERVICE OF THE NOTICE UNDER SECTION 148 OF THE ACT NOTED THAT ASSESSEE HA S BEEN COMPLYING WITH THE NOTICE THROUGH OUT THE ASSESSMEN T PROCEEDINGS AND HAS NEVER OBJECTED TO THE SAME. IT WAS ALSO NOTED THAT ASSESSEE HAS RECEIVED THE NOTICE TH ROUGH HIS AUTHORIZED SIGNATORY, WHO HAS NOT ONLY PUT HIS SIGNATURE BUT HAS DULY STAMPED THE ACKNOWLEDGEMENT. THE ASSESSING OFFICER, THEREFORE, NOTED THAT SINCE ASSESSEE NEVER CHALLENGED THE SERVICE OF THE NOTICE, THEREFO RE, REJECTED THE CONTENTION OF THE ASSESSEE IN THIS REG ARD. 7. THE LD. CIT(APPEALS) IN THE IMPUGNED ORDER HAS REITERATED THE FACTS STATED BY THE ASSESSING OFFICE R IN THE ASSESSMENT ORDER AND ALSO NOTED THAT SINCE ASSESSEE WAS RECEIVING NOTICES THROUGH THE SAME PERSON WHO RECEI VED THE NOTICE UNDER SECTION 148, THEREFORE, OBJECTION OF THE ASSESSEE HAS NO MERIT. IT WAS ALSO NOTED THAT WHEN ASSESSEE WAS ATTENDING THE PROCEEDINGS, THEREFORE, OBJECTION OF THE ASSESSEE WAS REJECTED. 5 8. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW AND REFER RED TO PB-11 WHICH IS THE NOTICE UNDER SECTION 148 OF THE ACT DATED 29.03.2005 WHICH IS RECEIVED ON 30.03.2005 BY FOR SUPER FINE KNITTERS LTD. AUTHORISED SIGNATORY THIS FACT WAS ALSO CONFIRMED BY THE LD. DR ON PRODUCTION OF THE ORIGINAL ASSESSMENT RECORD. THE LD. COUNSEL FOR TH E ASSESSEE SUBMITTED THAT SINCE THE TRIBUNAL RESTORED THIS MATTER TO THE FILE OF ASSESSING OFFICER, THEREFORE, IT WAS THE DUTY OF THE ASSESSING OFFICER TO DECIDE THIS IS SUE IN ACCORDANCE WITH LAW ONLY AND COULD NOT GO ON ANY OT HER ISSUE. HE HAS SUBMITTED THAT ASSESSING OFFICER, IN THE IMPUGNED ORDER HAS WRONGLY NOTED THAT THE ASSESSEE HAS NEVER OBJECTED TO THE SERVICE OF THE NOTICE UNDER S ECTION 148 OF THE ACT AT THE RE-ASSESSMENT PROCEEDINGS. H E HAS REFERRED TO PB-14 WHICH IS OBJECTION OF THE ASSESSE E AGAINST RE-OPENING OF THE ASSESSMENT. PB-16 IS THE FURTHER OBJECTION OF THE ASSESSEE, ON INSPECTION OF THE RECORD, IN WHICH THE ASSESSEE HAS SPECIFICALLY OBJE CTED TO THE SERVICE OF THE NOTICE UNDER SECTION 148 OF THE ACT AND THE SAID NOTICE HAS BEEN SERVED UPON SUPER FINE KNI TTERS LTD. AND HAS BEEN SIGNED BY SOME UNKNOWN PERSON. T HE ASSESSEE, THEREFORE, OBJECTED THAT THERE WAS NO PRO PER SERVICE UNDER THE LAW AND RE-ASSESSMENT ON SUCH BAS IS WAS ILLEGAL NOTICE. THE LD. COUNSEL FOR THE ASSESS EE, THEREFORE, SUBMITTED THAT AUTHORITIES BELOW WERE NO T JUSTIFIED IN HOLDING THAT ASSESSEE NEVER OBJECTED T O THE SERVICE OF THE NOTICE UNDER SECTION 148 OF THE ACT. HE HAS 6 REFERRED TO PB- 20 WHICH IS THE ORDERSHEET OF THE R E- ASSESSMENT PROCEEDINGS IN WHICH THE ASSESSING OFFIC ER NOTED THAT ON 29.03.2005, NOTICE UNDER SECTION 148 HAVE BEEN ISSUED. ON 30.03.2005, ASSESSING OFFICER NOTE D THAT NOTICE UNDER SECTION 148 HAVE BEEN SERVED UPON ASSE SSEE ON 30.03.2005 THEREAFTER, ORDERSHEET DATED 06.12.20 05 HAVE BEEN NOTED BY THE ASSESSING OFFICER FOR SUPPLY ING ALL THE REASONS FOR RE-OPENING OF THE ASSESSMENT TO ASS ESSEE. HE HAS SUBMITTED THAT ASSESSEE, THEREFORE, NEVER PARTICIPATED BEFORE ASSESSING OFFICER IN RESPONSE T O THE NOTICE UNDER SECTION 148 OF THE ACT AND ASSESSEE NE VER AUTHORIZED ANY PERSON OF SUPER FINE KNITTERS LTD. T O RECEIVE NOTICE ON BEHALF OF THE ASSESSEE. THE ASSE SSEE, FOR THE FIRST TIME APPEARED ON 12.12.2005 AS PER ORDERS HEET. ON 14.11.2005 (PB-23) ASSESSING OFFICER ISSUED NOTI CE FOR LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT AND CASE WAS FIXED FOR 22.11.2005. THE LD. COUNSEL FOR THE ASSESSEE, THEREFORE, SUBMITTED THAT AFTER RECEIPT O F PENALTY NOTICE DATED 14.11.2005, THE ASSESSEE FILED RETURN OF INCOME ON 22.11.2005 (PB-13). HE HAS SUBMITTED THA T PROVISIONS OF SECTION 292BB OF THE ACT ARE APPLICAB LE W.E.F. 01.04.2008. HE HAS, THEREFORE, SUBMITTED TH AT SINCE NO NOTICE UNDER SECTION 148 HAVE BEEN VALIDLY SERVE D UPON ASSESSEE WHICH IS JURISDICTIONAL NOTICE, THEREFORE, WHOLE RE-ASSESSMENT PROCEEDINGS ARE BAD IN LAW AND ARE LI ABLE TO BE QUASHED. HE HAS RELIED UPON FOLLOWING DECISIONS : 7 SR. NO. PARTICULARS 1. CHANDIGARH TRIBUNAL'S ORDER IN THE CASE OF VIJAY KARAN HOTELS P LTD VS. ITO, LUDHIANA DATED 28.04.2006 161 TAXMAN 204 (MAG) NO VALID NOTICES SERVED AS THE SIGNATURES OF THE RECIPIENT THOUGH RESEMBLED WITH SIGNATURES OF MD. BUT WERE NOT ACTUAL SIGNATURE OF M.D. IN ASSESSMENT PROCEEDINGS NOT RELEVANT. REASSESSMENT QUASHED ON THE GROUND OF IMPROPER SERVICE. 2. GURCHARAN SINGH VS. ITO (ASR) BENCH DATED 19.02.201 5 NOTICE U/S 148 SERVED ON THE BROTHER OF ASSESSEE - NO EVIDENCE THAT BROTHER WAS AUTHORIZED BY THE ASSESSEE TO ACCEPT SERVICE - REASSESSMENT QUASH ED. 3. CIT VS. RAJESH KUMAR SHARMA (2009) 311 ITR235 (DEL)(HC) DATED 13.08.2007 NOTICES U/S 148 WERE RECEIVED BY AN EMP LOYEE OF THE ASSESSEE - SERVICE IN VALID. RE-ASSESSMENT QUASHED. 4. CIT VS. CHETAN GUPTA (DEL)(HC) DATED 15. 09.201 5 . NO PROPER SERVICE HAD BEEN EFFECTED ON THE ASSESSEE - REASSESSMENT PROCEEDING WERE LIABLE TO BE QUASHED 5. CIT VS. HOTLINE INTERNATIONAL P LTD DATED 03.04.2007 (DEL)(HC) 296 ITR 333. NOTICE U/S 148 NOT VALIDLY SERVED RE ASSESSMENT QUASHED 9. ON THE OTHER HAND, LD. DR RELIED UPON ORDERS OF THE AUTHORITIES BELOW AND REFERRED TO NOTICE DATED 16.1 2.2005 ISSUED TO THE ASSESSEE BY THE ASSESSING OFFICER WHI CH WAS ALSO RECEIVED BY M/S SUPER FINE KNITTERS LTD. IN TH E SAME STAMP AND SUBMITTED THAT SINCE ASSESSEE ATTENDED PROCEEDINGS BEFORE ASSESSING OFFICER, THEREFORE, EV EN IF NO NOTICE HAVE BEEN SERVED UNDER SECTION 148, PROCEEDI NGS CANNOT BE QUASHED BECAUSE THE SAID AUTHORIZED SIGNA TORY MUST BE AUTHORIZED BY THE ASSESSEE TO RECEIVE THE N OTICE. LD. DR RELIED UPON DECISION OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF VRA COTTON MILLS PVT. LTD. VS UNION OF INDIA 359 ITR 495 IN WHICH THE ISS UE WAS OF SERVICE OF NOTICE UNDER SECTION 143(2) OF THE AC T. HON'BLE HIGH COURT HELD THAT THE EXPRESSION SERVE D 8 MEANS THE DATE OF ISSUE OF NOTICE. THE DATE OF REC EIPT OF NOTICE CANNOT BE LEFT TO BE UNDETERMINED DEPENDING UPON THE WILL OF THE ADDRESS. THE LD. DR ALSO RELIED UP ON ORDER OF ITAT AHMEDABAD BENCH IN THE CASE OF ITO VS VARIA PRATIK ENGINEERING 120 TTJ 1 IN WHICH THE TRIBUNAL HELD THAT SECTION 292BB APPLY TO THE PERIOD PRIOR TO 01.04.2008 AND SINCE ASSESSEE HAS NOT OBJECTED TO T HE ISSUE OF NOTICE, THEREFORE, ASSESSEE CANNOT BE ALLO WED TO TAKE OBJECTION AT THIS STAGE WITH REGARD TO SERVICE OF THE NOTICE. THE LD. DR, THEREFORE, SUBMITTED THAT APP EAL OF THE ASSESSEE HAS NO MERIT, THE SAME MAY BE DISMISSE D. 10. WE HAVE CONSIDERED RIVAL SUBMISSIONS. IT IS NO T IN DISPUTE THAT PRESENT PROCEEDINGS CONDUCTED BY THE AUTHORITIES BELOW WERE ON ACCOUNT OF THE MATTER IN ISSUE WITH REGARD TO SERVICE OF NOTICE UNDER SECTION 148 OF THE ACT, WAS REMANDED TO THE ASSESSING OFFICER BY THE TRIBUNAL VIDE ORDER DATED 28.11.2008. THE FINDINGS OF THE TRIBUNAL ARE REPRODUCED ABOVE IN WHICH THE TRIBUNAL WHILE REMANDING THE MATTER TO THE ASSESSING OFFICER WAS O F THE OPINION THAT SINCE THE ISSUE OF SERVICE OF NOTICE U NDER SECTION 148 HINGES ON FACTUAL ASPECTS WHICH CAN BE DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON ASSES SMENT FOLDER, THEREFORE, MATTER WAS REMANDED TO THE ASSES SING OFFICER. THE ASSESSEE HAS FILED PAPER BOOK CONTAIN ING THE RELEVANT DOCUMENTS. THE LD. DR ALSO PRODUCED THE ORIGINAL ASSESSMENT FOLDER FOR OUR PERUSAL DURING T HE COURSE OF HEARING OF THE APPEAL. IT IS WELL SETTLED LAW THAT 9 WHEN THE MATTER IS REMANDED TO THE ASSESSING OFFICE R ON LIMITED ISSUE, THE JURISDICTION OF THE ASSESSING OF FICER IS CONFINED TO SUCH ISSUE ONLY. WE ARE FORTIFIED IN O UR VIEW BY THE JUDGEMENT OF HON'BLE ALLAHABAD HIGH COURT IN THE CASES OF S.P. KOCHHAR 145 ITR 255 AND SHRI VINDHYAWASINI GUPTA 186 ITR 253 AND DECISION OF HON 'BLE CALCUTTA HIGH COURT IN THE CASE OF KATHIAR JUTE MIL LS 120 ITR 861. THE ISSUE WAS, THEREFORE, LIMITED BEFORE AUTHORITIES BELOW WHETHER NOTICE UNDER SECTION 148 WAS VALIDLY SERVED UPON THE ASSESSEE OR NOT AND ITS EFF ECT ON RE-ASSESSMENT ORDER/PROCEEDINGS. THE ASSESSEE FILE D COPY OF THE NOTICE UNDER SECTION 148 OF THE ACT DATED 29.03.2005 AT PAGE 11 OF THE PAPER BOOK WHICH IS NO T RECEIVED BY THE ASSESSEE INDIVIDUALLY. IT IS RECEI VED BY SOME LIMITED COMPANY M/S SUPER FINE KNITTERS LTD. THROUGH AUTHORIZED SIGNATORY ON 30.03.2005. THE ORI GINAL NOTICE WAS SHOWN TO US DURING THE COURSE OF ARGUMEN TS BY THE LD. DR WHICH ALSO CONFIRMED THE SAME POSITION. IT IS, THEREFORE, CLEAR THAT NOTICE UNDER SECTION 148 IN Q UESTION WAS NEVER SERVED UPON ASSESSEE. THE ASSESSING OFFI CER HAS NOT TRIED TO VERIFY AS TO WHY THE JURISDICTIONA L NOTICE UNDER SECTION 148 WAS RECEIVED BY A PRIVATE LIMITED COMPANY INSTEAD OF ASSESSEE. WHEN STAMP OF PRIVATE LTD. COMPANY WAS AFFIXED IN TOKEN OF RECEIPT OF NOTICE U NDER SECTION 148 OF THE ACT, THE ASSESSING OFFICER SHOUL D HAVE VERIFIED THIS FACT FROM THE PROCESS SERVER AS TO UN DER WHAT CIRCUMSTANCES, JURISDICTIONAL NOTICE UNDER SECTION 148 HAVE BEEN SERVED UPON AUTHORIZED SIGNATORY OF PRIVA TE LTD. 10 COMPANY INSTEAD OF SERVING THE SAME ON THE ASSESSEE INDIVIDUAL OR UPON HIS AUTHORIZED SIGNATORY. NO CLARIFICATION HAVE BEEN GIVEN DURING THE COURSE OF ARGUMENTS IF ASSESSING OFFICER HAS MADE ANY ATTEMPT TO INQUIRE INTO THIS ASPECT OF THE MATTER WITH REGARD TO VALID SERVICE OF THE NOTICE UNDER SECTION 148 OF THE ACT UPON ASSESSEE. THE AUTHORITIES BELOW HAVE WRONGLY NOTED THAT ASSESSEE HAS JOINED THE PROCEEDINGS BEFORE HIM IN RESPONSE TO SERVICE OF NOTICE UNDER SECTION 148 OF THE ACT. THE COPY OF THE ORDERSHEET IS FILED IN THE PAPER BO OK WHICH SHOWS THAT AFTER ALLEGED SERVICE OF THE NOTIC E UNDER SECTION 148 ON 30.03.2005, NO RETURN UNDER SECTION 148 HAVE BEEN FILED BY ASSESSEE IN RESPONSE TO SUCH SER VICE OF THE ALLEGED NOTICE DATED 29.03.2005. THIS FACT IS ALSO MENTIONED BY THE ASSESSING OFFICER IN THE ORIGINAL ASSESSMENT ORDER DATED 29.03.2006 THAT NO RETURN HA S BEEN FILED IN RESPONSE TO THE NOTICE UNDER SECTION 148 WITHIN THE STIPULATED PERIOD. THE ASSESSING OFFICER , THEREAFTER, SERVED A COPY OF THE REASONS RECORDED U NDER SECTION 148 OF THE ACT TO THE ASSESSEE ON 06.12.200 5. THEREFORE, FROM 30.03.2005 TO 06.12.2005, THE ASSES SING OFFICER DID NOT CONDUCT ANY RE-ASSESSMENT PROCEEDIN GS AND ASSESSEE HAS ALSO NOT APPEARED OR PARTICIPATED IN RE- ASSESSMENT PROCEEDINGS BEFORE ASSESSING OFFICER TO JOIN ANY RE-ASSESSMENT PROCEEDINGS. THUS, THE NOTICE UND ER SECTION 148 OF THE ACT DATED 29.03.2005 WHICH WAS N OT SERVED UPON ASSESSEE WAS NEVER ACTED UPON BY ASSESS EE AT ANY POINT OF TIME. THE LD. COUNSEL FOR THE ASSESSE E 11 REFERRED TO PENALTY NOTICE DATED 14.11.2005 (PB-23 ) IN WHICH ASSESSING OFFICER DIRECTED TO SHOW CAUSE WHY PENALTY SHOULD NOT BE LEVIED FOR NON COMPLIANCE OF THE NOTICES AND FIXED THE CASE ON 22.11.2005. THE LD. C OUNSEL FOR THE ASSESSEE, THEREFORE, SUBMITTED THAT WHEN AS SESSEE CAME TO KNOW OF THE PRESENT PROCEEDINGS ON 22.11.20 05, THE RETURN UNDER SECTION 148 WAS FILED ON 22.11.200 5. 10(I) THE ASSESSEE, THEREAFTER, APPEARED BEFORE A SSESSING OFFICER ON 12.12.2005. PB-16 IS THE OBJECTION OF T HE ASSESSEE BEFORE ASSESSING OFFICER WHICH BEARS THE S TAMP OF DATED 03.03.2006 OF THE REVENUE DEPARTMENT IN WH ICH THE ASSESSEE HAS RAISED THE SPECIFIC OBJECTION OF S ERVICE OF THE NOTICE UNDER SECTION 148 UPON M/S SUPER FINE KNITTERS LTD. AND THE ASSESSEE SUBMITTED THAT IT HA S BEEN SIGNED BY SOME UNKNOWN PERSON, THEREFORE, NOT A PRO PER SERVICE AND AS SUCH ASSESSMENT ON THE BASIS OF SUCH ILLEGAL NOTICE WILL BE INFRUCTUOUS, THUS AUTHORITIE S BELOW WRONGLY NOTED THAT ASSESSEE NEVER OBJECTED TO THE SERVICE OF NOTICE UNDER SECTION 148 BEFORE THEM. IT WOULD, RATHER, SHOW THAT ASSESSING OFFICER DID NOT ENQUIRE INTO TH E SERVICE OF THE NOTICE UNDER SECTION 148 UPON DIFFER ENT PERSON AS WELL AS DID NOT DECIDE THE OBJECTIONS OF THE ASSESSEE IN ACCORDANCE WITH LAW. SINCE NOTICE UNDE R SECTION 148 WAS NOT SERVED ON ASSESSEE, SAME WOULD VIOLATE SECTION 148(1) OF IT ACT WHICH IS MANDATORY IN NATURE. 12 11. SECTION 292BB OF THE ACT READS AS UNDER : 292BB. WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDING O R CO-OPERATED IN ANY INQUIRY RELATING TO AN ASSESSMENT OR REASSES SMENT, IT SHALL BE DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF THIS ACT, WH ICH IS REQUIRED TO BE SERVED UPON HIM, HAS BEEN DULY SERVED UPON HIM IN T IME IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT AND SUCH ASSESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTION IN ANY PROCEEDING OR INQUIRY UNDER TH IS ACT THAT THE NOTICE WAS (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER: PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SHALL APPLY WHERE THE ASSESSEE HAS RAISED SUCH OBJECTION BEFORE THE COMPL ETION OF SUCH ASSESSMENT OR REASSESSMENT.] 11(I) THIS PROVISION WAS INSERTED INTO THE ACT W. E.F. 01.04.2008 THEREFORE, DO NOT APPLY TO ASSESSMENT YE AR 1998-99 IN APPEAL. ANY HOW, SINCE THE ASSESSEE DID NOT APPEAR IN THE RE-ASSESSMENT PROCEEDINGS AFTER ALLEG ED SERVICE OF THE NOTICE UNDER SECTION 148, ALSO DID N OT COOPERATE IN THE ENQUIRY AND HAS ALSO RAISED THE OBJECTIONS OF SERVICE OF NOTICE BEFORE ASSESSING OF FICER, THEREFORE, THESE PROVISIONS WOULD NOT APPLY IN THE CASE OF THE ASSESSEE. 12. THE LD. DR RELIED UPON DECISION OF AHMEDABAD BE NCH IN THE CASE OF VARIA PRATIK ENGINEERING (SUPRA), HO WEVER, ITAT DELHI SPECIAL BENCH IN THE CASE OF KUBER TOBAC CO PRODUCTS PVT. LTD. 117 ITD (SB) (DELHI) 273 HELD TH AT SECTION 292BB APPLY FROM ASSESSMENT YEAR 2008-09. IN CASE OF CHETAN GUPTA (SUPRA), DELHI HIGH COURT HELD , SECTION 292BB IS PROSPECTIVE. THEREFORE, OBJECTION OF LD. DR HAVE NO FORCE AND ARE ACCORDINGLY, REJECTED. 13 13. THE LD. COUNSEL FOR THE ASSESSEE RELIED UPON DE CISIONS OF DELHI HIGH COURT AS WELL AS DECISION OF ITAT CHANDIGARH BENCH AND AMRITSAR BENCH WHICH ARE DIREC TLY ON THE POINT IN ISSUE. THE HON'BLE DELHI HIGH COURT IN THE RECENT DECISION IN THE CASE OF CHETAN GUPTA DATED 15.09.2015 (SUPRA) HELD THAT THE ISSUE OF NOTICE U NDER SECTION 148 TO THE ASSESSEE AND SERVICE OF SUCH NOT ICE UPON ASSESSEE ARE JURISDICTIONAL REQUIREMENTS THAT MUST BE MANDATORILY COMPLIED WITH. THEY ARE NOT MERE PROCEDURAL REQUIREMENT. FURTHER, ASSESSING OFFICER CANNOT COMPLETE RE-ASSESSMENT WITHOUT SERVICE OF NO TICE UNDER SECTION 148(1) OF THE ACT. IT WAS ALSO HELD THAT RE- ASSESSMENT PROCEEDINGS FINALIZED BY THE ASSESSING O FFICER WITHOUT EFFECTING PRIOR SERVICE OF NOTICE ON THE AS SESSEE UNDER SECTION 148(1) OF THE ACT ARE INVALID AND ARE LIABLE TO BE QUASHED. THESE DECISIONS ARE DIRECTLY ON TH E POINT. IT MAY BE NOTED HERE THAT SINCE THESE WERE THE SET ASIDE PROCEEDINGS CONDUCTED BY THE AUTHORITIES BELOW AFTE R THE MATTER WAS REMANDED BY THE TRIBUNAL, THEREFORE, THE ISSUE BEFORE AUTHORITIES BELOW WOULD BE LIMITED TO THAT E XTENT ONLY I.E. SERVICE OF NOTICE UNDER SECTION 148 AND I TS EFFECT. 14. CONSIDERING THE ABOVE DISCUSSION AND MATERIAL O N RECORD, IT IS CLEAR THAT THE NOTICE UNDER SECTION 1 48 DATED 29.03.2005 WAS NEVER SERVED UPON THE ASSESSEE OR HI S AUTHORIZED REPRESENTATIVE, THEREFORE, THE MANDATORY REQUIREMENT UNDER SECTION 148(1) HAVE NOT BEEN COMP LIED BY THE ASSESSING OFFICER AND AS SUCH ASSESSING OFFI CER HAS 14 NOT VALIDLY ASSUMED THE JURISDICTION TO REOPEN THE ASSESSMENT UNDER SECTION 148 OF THE ACT. THEREFORE, WE FIND THAT SINCE NO PROPER SERVICE OF THE NOTICE HAD BEEN EFFECTED UNDER SECTION 148(1) OF THE ACT ON THE ASS ESSEE, RE-ASSESSMENT PROCEEDINGS WERE LIABLE TO BE QUASHED . CONSEQUENTLY, WE DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 15. IN THE RESULT, WE SET ASIDE THE ORDERS OF AUTHO RITIES BELOW AND QUASH THE RE-ASSESSMENT PROCEEDINGS UN DER SECTION 148 OF THE ACT WHICH RESULTED INTO THAT ALL ADDITIONS WOULD STAND DELETED. 16. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (ANNAPURNA MEHROTRA) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 9 TH OCT.,2015. FIT FOR PBLICATION SD/- SD/- (ANNAPURNA MEHROTRA) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER