Akhtar Khan, Noida V. ITO, Ward- 1(1), Noida

ITA 138/DEL/2018

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 3689 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 04-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAKESH GUPTA
• Keywords: Reopening of assessment; Tax effect; Reassessment proceedings
• Section: 147; 27; 148; 144; 142(1); 143(2)

Judgement Text

I.T.A.No.138/Del/2018 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “SMC” NEW DELHI BEFORE SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER आ.अ.स ं /.I.T.A No.138/Del/2018 /Assessment Year: 2009-10 Akhtar Khan C/o RRA TaxIndia, D-28, South Extension, Part-1, New Delhi. ब म Vs. ITO Ward 1(1), Noida. PAN No. AMAPK6768M अ Appellant /Respondent िनधा रतीक ओरसे /Assessee by Dr. Rakesh Gupta, Adv. Shri Somil Agarwal, CA राज वक ओरसे /Revenue by Shri Om Prakash, Sr. DR स ु नवाईक तारीख/ Date of hearing: 08.03.2022 उ ोषणाक तारीख/Pronouncement on 27.04.2022 आदेश /O R D E R This appeal is filed by the Assessee against the order of the Ld. Commissioner of Income Tax (Appeals)-1, Noida dated 29.09.2017 for the AY 2009-10. The assessee challenged the order of the Ld. CIT(Appeals) on various grounds including the non-service of notice u/s 148 and also notice u/s 143(2) and various other grounds on merits of the additions/disallowances. 2. The Ld. Counsel for the assessee at the outset submits that no notice u/s 148 was served on the assessee and, therefore, in the absence of service of notice u/s 148 the reopening of assessment is void ab intito and bad in law. Reliance was placed on the following decisions: I.T.A.No.138/Del/2018 2 1. CIT vs. Eshaan Holdings (P) Ltd. 345 ITR 541 (Del); 2. CIT Vs. Chetan Gupta 382 ITR 613 (Del); 3. Pr. CIT Vs. Atlanta Capital Pvt. Ltd. ITA No. 665/2015 dated 21.09.2015 (Del. HC); 4. CIT vs. Hotline International (P) Ltd. 296 ITR 333 (Del) (HC); 5. CIT Vs. Rajesh Kumar Sharma 311 ITR 235 (Del) (HC); 6. CIT Vs. Avtar Singh 219 CTR 588 (P&H High Court). 3. The Ld. Counsel for the assessee submits that on inspection of the records it is found that the notice was sent to the old address of the assessee and the notice was returned by the postal authorities and the same was kept on record by the AO and, therefore, the said notice was never served on the assessee. 4. The Ld. DR could not controvert the submissions of the assessee with evidence even though the original record was present while the matter was taken up for hearing. 5. Heard rival submissions perused the orders of the authorities below. On perusal of the assessment order it is observed that notice u/s 148 was issued on 30.03.2016. Similarly notice u/s 142(1) was issued on 04.05.2016 fixing the date of compliance as 23.05.2016 and again on 17.10.2016 fixing the date of compliance as 21.10.2016 alongwith questionnaire. The AO recorded a finding that assessee has failed to make any compliance and, therefore, proceeded to complete the assessment. It is noticed that the assessment was completed u/s 147 read with section 144 of the Act determining the long term capital gain at Rs.22,20,000/-. I.T.A.No.138/Del/2018 3 6. On appeal the Ld. CIT(A) sustained the same. Before the ld. CIT(A) the assessee contended that notice u/s 148 was not served. However, the Ld. CIT(A) simply rejected the objections raised by the assessee stating that assumption of jurisdiction nu/s 147 and issued of notice u/s 148 has no force as the AO has very specifically mentioned in the assessment order that the said notice was issued on the assessee as per due procedure and there was no response from the assessee. The Ld. CIT(A) proceeded to adjudicate the appeal on merits and decided against the assessee. It is the contention of the Ld. Counsel for the assessee that no notice u/s 148 has been served which submission has not been controverted by the Ld. DR with evidences. 7. In the case of CIT Vs. Eshaan Holdings (P) Ltd. (supra) the Hon’ble Delhi High Court held as under: - “Notice under Section 148 of the Income Tax Act, 1961 (for short, the 'Act') was issued by the Assessing Officer on 29.1.2004 It was sent at 438, Mount Kailash Towers, East of Kailash, New Delhi (hereinafter referred to as the 'old address'). By that time, the assessee had shifted from the said address to N-118, Panchsheel Park, New Delhi (hereinafter referred to as the 'new address'). Return for the assessment year 2003-04 was also filed on 28,11.2003, i.e. before the issue of the aforesaid notice on 29.1.2004, showing the new address. However, not a single communication was sent at that address and further steps for serving the notice under Section 148 of the Act were also taken showing the old address. Commissioner of Income Tax (Appeal), in these circumstances, held that no valid notice was served upon the assessee under Section 148 of the Act. The entire discussion in this behalf, in appeal, is summarized by the ITAT in para 8 of its order, relevant portion whereof makes the following reading:- We have carefully considered the matter. We have also perused the record produced by the department. In our humble opinion, the CIT (A) has taken the correct view of the matter in holding that there was no valid service of notice under section 148 and I.T.A.No.138/Del/2018 4 hence the reassessment proceedings are null and void. The first notice issued on 29.1.2004 by speed-post was said to have been served on the old address at East of Kailash. There is no proof of service on record. Even otherwise, this is not valid service because the assessee had already filed its return for the assessment year 2003-04 on 28.11.2003 and in this return the address shown was Panchsheel Park. Thus, the record of the department already contained the new address of the assessee. Before issuing the notice under section 148 it was expected of the Assessing Officer to have checked up if there was any change of address, because valid service of a notice of reopening the assessment is a jurisdictional matter and this is a condition precedent for a valid reassessment. The contention of the learned counsel for the assessee that the Act does not provide for a formal intimation of the change of address and therefore the only place where one would find if there has been a change in the address is the return of income (for later years) contains force. So far as the presumption to be drawn under sec. 27 of the General Clauses Act is concerned, it can be drawn only if the notice is properly addressed which is not the case here. As already noted, it was sent to the old address. Further, in the letter dated 20.11.2004 written to the Assessing Officer the assessee has denied service of the notice under section 148. Hence even if s scope for drawing a presumption, the assessee has come before the Assessing Officer and denied service. The notice served by affixture is also not valid service because it was done at the old address, which is not the last-known address, as the new address has already been intimated to the department in the return of income filed for the assessment year 2003-04 and that is the last-known address. Ld. Counsel for the Revenue argued that no doubt in the return filed on 28.11.2003 for the assessment year 2003-04, on the first page new address is given, the assessee had also shown the old address in the annexure to the said return showing computation of assessable income. However, learned counsel for the assessee had explained that the assessee had sold and disposed of the old premises at East of Kailash by a sale deed and even given the possession to the purchaser on 3.9.2003. Affidavit to that effect is filed along with the copy of the sale deed. After hearing the arguments at length and going through various documents, we gather the impression that it may be a case of bona fide mistake on the part of the Assessing Officer However, a valuable right accrued to the respondent and, furthermore, when we find that the tax effect is only Rs.4,13,210/- (as per the CBDT circular, appeals with tax effect upto Rs.4,00,000/- are not to be filed). Going by these considerations, we are of the opinion that the aforesaid findings need no interference in the present appeal. I.T.A.No.138/Del/2018 5 Dismissed.” 8. Similar view has been taken by the Hon’ble Delhi High Court in the case of CIT Vs. Chetan Gupta (supra), wherein the Hon’ble High Court held that where notice u/s 148 was not served on the assessee in accordance with law the reassessment made consequent thereto was without jurisdiction and liable to be quashed. In the case on hand as the Revenue could not prove the service of notice u/s 148 on the assessee in accordance with law the re-assessment made u/s 147 read with section 144 pursuant to such notice is void ab initio and bad in law. Hence, the reassessment order made u/s 144 read with section 147 is quashed. Since the appeal of the assessee is allowed on preliminary ground I am not going into other legal grounds and grounds taken on merits as they become only academic at this stage. 9. In the result, the appeal of the assessee is allowed as indicated above. Order pronounced in the open court on 27/04/2022 Sd/- (C.N. PRASAD) JUDICIAL MEMBER Dated: 27.04.2022 *Kavita Arora, Sr. P.S. Copy of order sent to- Assessee/AO/Pr. CIT/ CIT (A)/ ITAT (DR)/Guard file of ITAT. By order Assistant Registrar, ITAT: Delhi Benches-Delhi