ITO, New Delhi V. M/s. Goel Sons Golden Estate Pvt. Ltd., Delhi

ITA 3974/DEL/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7010 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC 3
• Next Hearing Date: 17-06-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 11-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S L DEEPAK
• Keywords: Unexplained cash credit; Period of limitation; Corroborative evidences; Accommodation entries; Onus to prove; Reassessment proceedings
• Section: 142(1); 147; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-3, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 3974 /DEL/201 4 A.Y. : 200 5 - 0 6 ITO, WARD 12(2), NEW DELHI VS. M/S GOEL SONS GOLDEN ESTATE PVT. LTD., OFFICE NO. 3, 1 ST FLOOR, CSC, KD-BLOCK, PITAMPURA, DELHI 110 034 (PAN: AACCG1922A) (APPELLANT) (RESPONDENT) DEPARTMENT BY : NONE ASSESSEE BY : SH. SL DEEPAK, CA DATE OF HEARING : 20-06-2016 DATE OF ORDER : 01-07-2016 ORDER PER H.S. SIDHU, JM REVENUE HAS FILED THIS APPEAL AGAINST THE ORDER DA TED 30.4.2014 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XV, NEW DELHI PERTAINING TO ASSESSMENT YE AR 2005-06 ON THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN TREATING THE REASSESSMENT PROCEEDINGS U/S. 147 OF THE ACT AS BAD IN LAW. ITA NO. 3974/DEL/2014 A.Y. 2005-06 2 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 38,01,030/- WITHOUT DECIDING THE MATTER ON MERITS. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN TREATING THE NOTICE ISSUED U/S. 148 OF THE I.T. ACT AS DEFECTIVE. 4. THE APPELLANT CRAVES TO ADD, ALTER, AMEND, MODIFY, ADD OR FOREGO ANY GROUND OF APPEAL AT ANY TIME BEFORE O R DURING THE HEARING OF THIS APPEAL. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED THE RETURN DECLARING AN INCOME OF RS. 98,140/- ON 30.6. 2005. IN THIS CASE, INFORMATION HAS BEEN RECEIVED FROM THE OFFICE OF THE DIT(INV.), NEW DELHI ABOUT THE COMPANIES WHO WERE INVOLVED IN TAKING/GIVING ACCOMMODATION ENTRIES FOR UNACCOUNTED MONEY. IT LE ADS TO THE FACT THAT THE ASSESSEE COMPANY WAS ONE OF THE COMPANY, W HO HAS TAKEN ACCOMMODATION ENTRY FROM PARTIES FOR ITS OWN UNACCO UNTED MONEY. CONSIDERING THE ABOVE INFORMATION, CASE OF THE ASSE SSEE WAS REOPENED U/S. 147/148 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED THE ACT), AFTER RECORDING REASONS, NECESSA RY APPROVAL RECEIVED FROM ADDL. CIT(A), RANGE-12, NEW DELHI. N OTICE U/S. 148 OF THE ACT DATED 22.3.2012 WAS ISSUED AND SERVED BY THE SPEED POST AT THE OLD ADDRESS OF THE ASSESSEE COMPANY I.E. 25, HARSH VIHAR, PITAMPURA, DELHI-34. IN RESPONSE TO THE NOTI CE, NEITHER ANYONE ATTENDED NOR ANY WRITTEN SUBMISSIONS WERE FI ELD, THEREFORE, ITA NO. 3974/DEL/2014 A.Y. 2005-06 3 NOTICE U/S. 142(1) OF THE ACT DATED 30.1.2013 WAS ISSUED AT THE NEW ADDRESS OF THE ASSESSEE COMPANY, CALLING DETAIL S OF INCOME AND EXPENDITURES RELEVANT TO AY 2005-06. THEN LD. AR O F THE ASSESSEE ATTENDED THE PROCEEDINGS AND FILED THE REPLY DATED 6.2.2013 BY WAY OBJECTING THE PROCEEDINGS U/S. 148 STATING THAT THE MATTER IS TIME BARRED AS NO NOTICE U/S. 148 OF THE ACT DATED 22.3. 2012 WAS SERVED UPON THE ASSESSEE AND THE REPLY OF THE ASSESSEE H AS BEEN CONSIDERED AND OBJECTION RAISED WERE DULY REPLIED VIDE NOTICE U/S. 142(1) OF THE ACT WITH LETTER DATED 8.2.2013. THE REAFTER, THE AO OBSERVED THAT OPPORTUNITIES WERE ALLOWED TO THE ASS ESSEE TO EXPLAIN ITS CONTENTION WITH SUPPORTING EVIDENCE, BUT IT HAS FAILED IN EVERY RESPECT TO DISCHARGE ITS ONUS TO PROVE THAT THE AMO UNT OF OF RS. 38,01,030/- CREDITED IN THE BOOKS OF ACCOUNT/ BANK ACCOUNTS OF THE ASSESSEE ARE NOT ITS UNACCOUNTED MONEY. THEREFORE, A SUM OF RS. 38,01,030/- WAS ADDED BACK IN THE INCOME OF THE AS SESSEE BEING UNEXPLAINED CREDITS U/S. 68 OF THE ACT AND AO COMPL ETED THE ASSESSMENT AT RS. 38,99,170/- U/S. 144/147 OF THE A CT VIDE HIS ORDER 28.3.2013. 3. AGAINST THE ORDER OF THE LD. AO, ASSESSEE APPEA LED BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED ORDER DATED 30.4.201 4 HAS ALLOWED THE APPEAL OF THE ASSESSEE. ITA NO. 3974/DEL/2014 A.Y. 2005-06 4 4. AGGRIEVED WITH THE ORDER OF THE LD. CIT(A), RE VENUE IS IN APPEAL BEFORE THE TRIBUNAL. 5. THE PRESENT APPEAL CAME UP FOR HEARING BEFORE T HE BENCH ON 16.6.2016. LD. DR FILED AN APPLICATION FOR ADJOUR NMENT, BUT LD. COUNSEL OF THE ASSESSEE RAISED OBJECTION THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL IS SQUARELY COVERED BY THE VARIO US DECISIONS OF THE ITAT AND THE HONBLE HIGH COURT, THEREFORE, THE MATTER MAY BE HEARD. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTAN CES OF THE PRESENT CASE AND THE ISSUE INVOLVED IN THE PRESENT APPEAL AS WELL AS THE ORDER PASSED BY THE REVENUE AUTHORITY, IN THE I NTEREST OF JUSTICE THE CASE WAS ADJOURNED FOR 17.6.2016 BEING PART HEA RD. BOTH THE PARTIES WERE DULY INFORMED ABOUT THE NEXT DATE OF HEARING I.E. 17.6.2016. AGAIN ON 17.6.2016, THE DR FILED AN APP LICATION FOR ADJOURNMENT FOR 20.6.2016 AND THE CASE WAS ADJOURNE D FOR 20.6.2016, AS THE CASE WAS PARTLY HEARD, LD. COUNS EL OF THE ASSESSEE AGAIN OBJECTED FOR ADJOURNMENT. THE DR HA S ALSO TAKEN NOTE OF THE NEXT DATE OF HEARING I.E. 20.6.2016, BU T WHEN THE CASE CAME UP FOR HEARING BEFORE THE BENCH ON 20.6.2016 NO ONE APPEARED ON BEHALF OF THE DEPARTMENT TILL THE CONCL USION OF THE BENCH, NOR FILED ANY APPLICATION FOR ADJOURNMENT. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, I AM OF THE CONSIDER ED OPINION THAT ITA NO. 3974/DEL/2014 A.Y. 2005-06 5 NO USEFUL PURPOSE WOULD BE SERVED TO ADJOURN THE CA SE AGAIN AND AGAIN, HENCE, THE REVENUES APPEAL IS DECIDED EXPAR TE QUA DR, AFTER HEARING THE LD. COUNSEL OF THE ASSESSEE AND PERUSIN G THE RECORDS. 6. DURING THE COURSE OF HEARING LD. COUNSEL OF THE ASSESSEE RELIED UPON THE ORDER OF THE LD. CIT(A) AND STATED THAT THE SAME MAY BE UPHELD. 7. I HAVE HEARD LD. COUNSEL OF THE ASSESSEE AND PER USED THE RECORDS ESPECIALLY THE ORDERS OF THE REVENUE AUTHOR ITIES. I FIND THAT LD. CIT(A) HAS ELABORATELY DISCUSSED THE ISSUE IN D ISPUTE VIDE PARA NO. 6 TO PARA 9 AT PAGES 8 TO 14. THE RELEVANT PAR AS ARE REPRODUCED AS UNDER:- 6. I HAVE CAREFULLY CONSIDERED THE FACTS OF' THE CASE IN THE LIGHT OF THE SUBMISSIONS MADE BY THE APPELLANT AND THE OBSERVATION MADE BY THE AO IN THE IMPUGNED ORDER. ACCORDINGLY, MY DECISION ON VARIOUS GROUNDS IS AS U NDER: 6.2 I FIND THAT THERE IS NO DISPUTE THAT IN THE CAS E OF APPELLANT, IN TERMS OF THE PROVISIONS OF SECTION 151, THE NOTI CE U/S 148 WAS TO BE ISSUED ON OR BEFORE 31.3.2012. IN THE CAS E OF THE APPELLANT, THE SAID NOTICE WAS ISSUED ON 22.3.2012, HOWEVER, IT WAS ISSUED AT OLD ADDRESS OF THE APPELLANT FORM WHICH THE APPELLANT HAD FILED ITS ORIGINAL RETURN OF INCOME. HOWEVER, SUBSEQUENTLY, THE APPELLANT HAD SHIFTED FROM THAT P REMISES ITA NO. 3974/DEL/2014 A.Y. 2005-06 6 W.E.F. 28.6.2005 ITSELF AND SHIFTED TO KD-178 AT PI TAMPURA. THE APPELLANT HAD FILED SUBSEQUENT RETURNS OF INCOM E RELATING TO AY 2007-08 AND 2008-09 FROM THAT PREMISES. SUBSE QUENTLY, THE APPELLANT FURNISHED INTIMATION OF CHANGE OF ADD RESS TO OFFICE NO.3, FIRST FLOOR, CSC, KD BLOCK, PITAMPURA DELHI W.E.F. 5.3.2008 FROM WHERE SUBSEQUENT RETURNS WERE FILED. UNDISPUTEDLY, THE APPELLANT HAD MENTIONED ABOUT THE CHANGE OF ADDRESS TO THE ROC, INFORMED THE AO ABOUT THE CH ANGE AND GOT THE ADDRESS CHANGED IN PAN/TAN DATA BASE IN JAN UARY, 2010. EVIDENCES IN SUPPORT OF THIS, WERE FURNISHED BEFORE ME, WHICH HAVE BEEN DULY VERIFIED BY ME. UNDISPUTEDLY, THE LD. AO WAS ALSO INFORMED OF THIS CHANGE, VIDE LETTER DATED 10.8.2009, WHICH WAS TAKEN INTO COGNIZANCE BY THE AO HIMSELF, WHO HAD ISSUED NOTICE IN RESPECT OF THE PROCEEDINGS FOR THE ASSESSMENT YEAR 2005-06 TO THE NEW ADDRESS. IN FACT, IN THE IM PUGNED ORDER ITSELF, THE LD. AO MENTIONED OF HIS LETTER DA TED 19.3.2013, IN WHICH IT WAS CONCEDED THAT EVEN THOUG H THE APPELLANT HAD INTIMATED THE NEW ADDRESS TO THE DEPA RTMENT BUT INADVERTENTLY THE NOTICE U/S 148 WAS ISSUED AT THE OLD ADDRESS. THUS, THERE IS NO DOUBT THAT THE NOTICE U/ S 148 WAS DEFECTIVE, TO THAT EXTENT, AS THE AO HAD THE KNOWL EDGE OF THE CORRECT AND VALID ADDRESS, HOWEVER, STILL HE MENTIO NED THE OLD ITA NO. 3974/DEL/2014 A.Y. 2005-06 7 ADDRESS, ON WHICH THE APPELLANT WAS NOT CARRYING OU T BUSINESS AT THAT TIME. FURTHER, I FIND THAT THE NOTICE U/S 1 48, EVEN THOUGH ISSUED WITHIN THE PRESCRIBED TIME, WAS NOT S ERVED UPON THE APPELLANT, EVEN BEFORE PASSING THE ORDER OF RE- ASSESSMENT. 6.3 I FIND THAT THERE IS NO DISPUTE THAT THE NOTI CE U/S 148 DID NOT RETURN BACK TO THE LD. AO. HOWEVER, AT THE SAME TIME, THERE WAS NO RESPONSE FROM THE APPELLANT TO THE NOT ICE U/S 148 AND THE APPELLANT RESPONDED TO THE AO ONLY ON 6 .2.2013. THEREFORE, THE ONLY LOGICAL PRESUMPTION COULD BE DR AWN IS THAT THE APPELLANT WAS INFORMED OF THE IMPUGNED PROCEEDI NG ONLY BY WAY OF NOTICE U/S 142(1) DATED 30.1.2013, WHICH WAS ISSUED AT THE NEW AND VALID ADDRESS OF THE APPELLAN T. UNDER THE CIRCUMSTANCES, IT IS EVIDENT THAT THE NOTICE U/ S 148 DATED 22.3.2012, WAS NOT SERVED UPON THE APPELLANT WITHIN THE PRESCRIBED TIME LIMIT U/S 151. I FIND THAT DURING T HE RE- ASSESSMENT PROCEEDINGS ALSO, NOTICE U/S 148 WAS NOT SERVED UPON THE APPELLANT BEFORE PASSING OF THE IMPUGNED O RDER. IT IS A SETTLED LAW THAT SERVICE OF NOTICE U/S 148 BEFORE PASSING OF ASSESSMENT ORDER IS A CONDITION PRECEDENT. I ALSO F IND THAT THE APPELLANT HAD TAKEN ALL NECESSARY STEPS FOR THE PUR POSE OF MAKING DUE DILIGENCE IN THE MATTER BY INFORMING ROC , AO AND ITA NO. 3974/DEL/2014 A.Y. 2005-06 8 DIT(SYSTEM). THEREFORE, THE MISTAKE IS ATTRIBUTABLE TO THE AO ONLY, WHO WAS CASUAL IN ISSUING THE NOTICE U/S 148 AT THE OLD ADDRESS, WITHOUT VERIFYING OWN RECORDS FOR THE SUBS EQUENT YEARS AND THE SPECIFIC INFORMATION DATED 10.8.2009, GIVEN BY THE APPELLANT, WHEREBY THE APPELLANT HAD INFORMED C HANGE OF ADDRESS TO THE AO. 6.4 THE LD. AO, HAVING ADMITTED THE ABOVE MISTAKE, HAS STILL GONE AHEAD WITH THE IMPUGNED PROCEEDING BY HOLDING THAT THE SERVICE AT THE OLD ADDRESS AT 25, HARSH VIHAR, PITA MPURA, DELHI, WHICH WAS OWNED BY ONE OF THE DIRECTORS OF T HE APPELLANT COMPANY WAS A VALID SERVICE. THE APPELLAN T, ON THE OTHER HAND, WITH THE SUPPORT OF RELEVANT DOCUMENTS CLAIMED THAT THE SAID PREMISES AT 25, HARSH VIHAR, PITAMPUR A, DELHI, WHICH WAS IN THE NAME OF THE DIRECTOR (IN THE CURRE NT YEAR) MR. MUNNA BABU GOEL, WAS VACATED ON 11.6.2011 AFTER HIS DEATH ON 15.1.2011. NECESSARY EVIDENCES IN SUPPORT OF THE SAME WERE FURNISHED, WHICH HAVE BEEN VERIFIED. FURTHER, A LETTER TO NDPL FOR NOT RAISING ELECTRICITY BILL WAS ALSO FILE D, AS THE ELECTRICITY COMPANY WAS RAISING ELECTRICITY BILL AF TER VACATING THE PREMISES ON ESTIMATED BASIS. MOREOVER, IN THE C URRENT YEAR, THE NEW DIRECTORS OF THE APPELLANT COMPANY (F ROM THE FAMILY OF LATE MUNNA BABU GOAL) HAVE ALSO SHOWN THE NEW ITA NO. 3974/DEL/2014 A.Y. 2005-06 9 ADDRESS AT 24A, ALIPUR ROAD CIVIL LINES, NEW DELHI AND THERE IS NO EVIDENCE AT PREMISES AT 25, HARSH VIHAR, PITAMP URA, DELHI WAS USED AS A BUSINESS PREMISES OF THE APPELLANT OR BY ITS DIRECTORS, AS ON THE DATE OF ISSUE OF NOTICE U/S 14 8 DATED 22.3.2012. FURTHER, THERE IS NO EVIDENCE BROUGHT ON RECORD THAT THE APPELLANT COMPANY MAY HAVE AUTHORIZED ANYO NE, WHO MAY BE IN BENEFICIAL OWNERSHIP OR RESIDING AT 25, H ARSH VIHAR, PITAMPURA, DELHI, TO RECEIVE STATUTORY NOTICES AND ANY CORRESPONDENCE ON BEHALF OF THE APPELLANT COMPANY. 6.5 IN ANY CASE, A COMPANY IS A DISTINCT LEGAL ENTI TY FROM ITS DIRECTORS. THIS RELATIONSHIP GETS FURTHER REMOTE, W HERE SUCH A DIRECTOR IS A DECEASED ONE, WHO CANNOT BE EXPECTED TO RECEIVE THE NOTICE ISSUED BY THE LD. AO ON 22.3.2012, HAVIN G EXPIRED IN JANUARY, 2011. THE LD. AO HAS MADE SOME VAGUE STATEMENTS SUCH AS 'THE ISSUE ARISES DUE TO CARELES SNESS OF CONCERNED PERSONS OF YOUR SIDE (LETTER DATED 8.2.20 13) AND 'IT IS NOT A MATTER OF DEPARTMENT WHETHER THE PERSON OF THE ASSESSEE HAS GIVEN IT OR NOT TO THE CONCERNED AUTHO RITY OF THE ASSESSEE COMPANY.' HOWEVER, SINCE THE PREMISE DID N OT BELONG TO THE APPELLANT COMPANY AND THE DIRECTOR OF THE CO MPANY, WHO WAS THE OWNER OF THE PREMISE HAD DECEASED, BY N O STRETCH OF IMAGINATION, THE NOTICE DATED 22.03.2012 COULD HAVE ITA NO. 3974/DEL/2014 A.Y. 2005-06 10 BEEN SERVED UPON THE APPELLANT. 7. UNDER THE CIRCUMSTANCES, IT REMAINS UNDISPUTED T HAT THE NOTICE U/S 148 DATED 22.3.2011 WHICH IS THE FOUNDAT ION STONE OF REASSESSMENT PROCEEDING U/S 147, WAS ISSUED AT A N INCORRECT ADDRESS DUE TO MISTAKE ATTRIBUTABLE TO TH E AD AND COULD NOT BE SERVED UPON THE APPELLANT WITHIN THE S TATUTORILY PRESCRIBED TIME OF 6 YEARS AND EVEN THEREAFTER, BEF ORE THE ORDER OF RE-ASSESSMENT WAS PASSED. IN VIEW OF THIS THE RE- ASSESSMENT PROCEEDING ARE HELD AS BAD IN LAW. 7.2 THE DELHI HIGH COURT, IN THE CASE OF ELT VS. ES HAAN HOLDING (P.) LTD. [2012) 344 ITR 0541, ON SIMILAR FACTS, WH ERE THE NOTICE U/S 148 WAS ISSUED AT THE OLD ADDRESS OF THE ASSESSEE, DISMISSING THE APPEAL, HELD THAT FOR THE ASSESSMENT YEAR 2003-04, THERE WAS NO VALID SERVICE OF NOTICE UNDER SECTION 148 OF THE INCOME-TAX ACT, 1961, AND HENCE THE REAS SESSMENT PROCEEDINGS WERE NULL AND VOID. IN HOLDING SO THE H ON'BLE HIGH COURT HAD HELD AS UNDER: 'THE FIRST NOTICE ISSUED ON JANUARY 29J 2004J BY SP EED- POST WAS SAID TO HAVE BEEN SERVED AT THE OLD ADDRES S AT EAST OF KAILASH. THERE WAS NO PROOF OF SERVICE ON R ECORD. EVEN OTHERWISE, THIS WAS NOT VALID SERVICE BECAUSE THE ITA NO. 3974/DEL/2014 A.Y. 2005-06 11 ASSESSEE HAD ALREADY FILED ITS RETURN ON NOVEMBER 2 8, 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 NOTICE UNDER SECTION 148J IT WAS EXP ECTED OF THE ASSESSING OFFICER TO HAVE CHECKED UP IF THER E WAS ANY CHANGE OF ADDRESS, BECAUSE VALID SERVICE OF A N OTICE OF REOPENING THE ASSESSMENT IS A JURISDICTIONAL MAT TER AND THIS IS A CONDITION PRECEDENT FOR A VALID REASSESSMENT. THE NOTICE SERVED BY AFFIXTURE WAS AL SO NOT VALID SERVICE BECAUSE IT WAS DONE AT THE OLD AD DRESS, WHICH WAS NOT THE LAST KNOWN ADDRESS, AS THE NEW ADDRESS HAD ALREADY BEEN INTIMATED TO THE DEPARTMEN T IN THE RETURN OF INCOME FILED FOR THE ASSESSMENT YEAR 2003- 04. 7.2.2 FURTHER, THE HONBLE ITAT DELHI IN THE CASE OF ITO V. ON EXIM P. LTD. [2013] 026 ITR (TRIB) 0697 ALLOW ED THE APPEAL BY HOLDING THAT THE NOTICE WAS HANDED OV ER TO THE POSTAL AUTHORITIES ON APRIL 1, 2008 WHICH WAS B EYOND THE PERIOD OF LIMITATION OF SIX YEARS PROVIDED IN S ECTION 149 OF THE ACT. THE HON'BLE ITAT HAD HELD AS UNDER: ITA NO. 3974/DEL/2014 A.Y. 2005-06 12 '(II) THAT THE NOTICE WAS NOT CORRECTLY ADDRESSED. THE NOTICE HAD TO BE SENT TO THE ADDRESS OF THE ASSESSE E GIVEN IN ITS RECORD WITH THE INCOME-TAX DEPARTMENT AND NOT TO SOME OTHER ADDRESS WHICH MIGHT HAVE BEEN GIV EN BY THE INVESTIGATION WING. THE NOTICE WAS ISSUED IN MARCH/ 2008 AND THE ASSESSMENT WAS COMPLETED IN DECEMBER/ 2008 AND/ IN THE ASSESSMENT ORDER/ THE ASSESSING OFFICER HIMSELF HAD GIVEN A DIFFERENT ADD RESS OTHER THAN WHAT WAS GIVEN IN THE NOTICE UNDER SECT ION 148 OF THE ACT. THEREFORE THE NOTICE WAS ISSUED AT THE INCORRECT ADDRESS/ WHICH WAS NOT VALID ISSUE OF NOT ICE.' 7.2.3 THE HON'BLE ITAT RELIED UPON THE DECISION OF THE GUJARAT HIGH COURT IN THE CASE OF KANUBHAI M.PATEL (HUF) V. HIREN BHATT OR HIS SUCCESSORS TO OFFICE [2011] 3 34 ITR 25 (GUJ) AT PAGES 32 OF 334 ITR, IN WHICH THE FOLLO WING WAS HELD: 'THUS THE EXPRESSION 'TO ISSUE' IN THE CONTEXT OF ISSUANCE OF NOTICES/ WRITS AND PROCESS/ HAS BEEN ATTRIBUTED THE MEANING/ TO SEND OUT; TO PLACE IN TH E HANDS OF THE PROPER OFFICER FOR SERVICE. THE EXPRESSION 'SHALL' BE ISSUED AS USED AS SECTION 149 WOULD THEREFORE/ HAVE TO BE READ IN THE AFORESAID ITA NO. 3974/DEL/2014 A.Y. 2005-06 13 CONTEXT. IN THE PRESENT CASE/ THE IMPUGNED NOTICES HAVE BEEN SIGNED ON MARCH 31/ 2010/ WHEREAS THE SAME WERE SENT TO THE SPEED POST CENTRE FOR BOOKING ONLY ON APRIL 7/ 2010. CONSIDERING THE DEFINITION OF THE WORD 'ISSUE', IT IS APPARENT THAT MERELY SIGNING THE NOTICES ON MARCH 31, 2010 CANNOT BE EQUATED WITH ISSUANCE OF NOTICE AS CONTEMPLATED UNDER SECTION 149 OF THE ACT. THE DATE OF ISSUE WOULD BE THE DATE ON WHICH THE SAME WERE HANDED OVER FOR SERVICE TO THE PROPER OFFICER/ WHICH IN THE FACTS OF THE PRESENT CASE WOULD BE THE DATE ON WHICH THE SAID NOTICES WERE ACTUALLY HANDED OVER TO THE POST OFFICE FOR THE PURPOSE OF BOOKING FOR THE PURPOSE OF EFFECTING SERVICE ON THE PETITIONERS. TILL THE POINT OF TIME THE ENVELOPES A RE PROPERLY STAMPED WITH ADEQUATE VALUE OF POSTAL STAMPS, IT CANNOT BE STATED THAT THE PROCESS OF ISSUE IS COMPLETE. IN THE FACTS OF THE PRESENT CASE , THE IMPUGNED NOTICES HAVING BEEN SENT FOR BOOKING TO THE SPEED POST CENTRE ONLY ON APRIL 7, 2010, THE DATE OF ISSUE OF THE SAID NOTICES WOULD BE APRIL 7, 2010 AND NOT MARCH 31, 2010, AS CONTENDED ON ITA NO. 3974/DEL/2014 A.Y. 2005-06 14 BEHALF OF THE REVENUE. IN THE CIRCUMSTANCES, THE IMPUGNED NOTICES UNDER SECTION 148 IN RELATION TO THE ASSESSMENT YEAR 2003-04, HAVING BEEN ISSUED ON APRIL 7, 2010 WHICH IS CLEARLY BEYOND THE PERIOD OF SIX YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, ARE CLEARLY BARRED BY LIMITATION AND AS SUCH, CANNOT BE SUSTAINED. (EMPHASIS SUPPLIED) 8. I ALSO HOLD THAT THE DEFECT IN NOTICE U/S 148 IS NOT CURABLE IN TERMS OF THE PROVISIONS OF SECTION 292BB EITHER, AS THE APPELLANT HAD RIGHT THROUGH OUT RAIS ED OBJECTION ON THE VALIDITY OF PROCEEDINGS ON THE GRO UND OF NON-SERVICE OF THE SAID NOTICE U/S 148 DATED 22.3.2 012 AND NOT PARTICIPATED IN THE RE-ASSESSMENT PROCEEDIN GS. 9. KEEPING IN VIEW THE ABOVE AND IN THE LIGHT OF THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CAS E OF CLT VS. ESHAAN HOLDING (P.) LTD (SUPRA), THE DECISION O F ALLAHABAD HIGH COURT IN THE CASE OF DR. AJAY PRAKES H (SUPRA) AND OF HON'BLE ITAT DELHI IN THE CASE OF OM EXIM PVT. LTD. (SUPRA), THE IMPUGNED ASSESSMENT PROCEEDI NG RESULTING FROM THE ISSUE OF A DEFECTIVE NOTICE U/S 148 DATED 22.3.2012, WHICH WAS ADDRESSED AT AN ADDRESS, WHICH IS NOT THE CURRENT ADDRESS AS PER THE RECORD OF THE AO, AND WHICH WAS NOT SERVED UPON THE APPELLANT BEF ORE PASSING THE IMPUGNED ORDER, IS HELD AS BAD IN LAW. ITA NO. 3974/DEL/2014 A.Y. 2005-06 15 ACCORDINGLY, THE ADDITION MADE BY THE LD. AO, ON WH ICH THE APPELLANT DID NOT ARGUE ON MERIT, CANNOT BE SUSTAINED. IN VIEW OF THIS, THE ADDITION MADE BY TH E LD. AO IS DELETED. 8. AFTER PERUSING THE FINDING OF THE LD. CIT(A), I FIND THAT IT IS UNDISPUTED FACT THAT THE NOTICE U/S. 148 OF THE ACT DATED 22.3.2011 WHICH IS FOUNDATION STONE OF REASSESSMENT PROCEEDI NGS U/S. 147, WAS ISSUED AT AN INCORRECT ADDRESS DUE TO MISTAKE A TTRIBUTABLE TO THE AO AND COULD NOT BE SERVED UPON THE ASSESSEE WI THIN THE STATUTORILY PRESCRIBED TIME OF 6 YEARS AND EVEN THE REAFTER, BEFORE THE ORDER OF REASSESSMENT WAS PASSED. THEREFORE, I N MY CONSIDERED OPINION, CIT(A) BY RESPECTFULLY FOLLOWING THE FOLLO WING DECISIONS HAS RIGHTLY HELD THAT THE REASSESSMENT PROCEEDINGS ARE BAD IN LAW AND DELETED THE ADDITION. - CIT VS. ESHAAN HOLDING (P) LTD. (2012) 344 ITR 0541. - ITO VS. EXIM P LTD. (2013) 026 ITR (TRIB.) 0697 . - KANUBHAI M. PATEL (HUF) VS. HIREN BHATT (2011) 33 4 ITR 25 (GUJ.) AT PAGES 32 OF 334 ITR 8.1 IN VIEW OF ABOVE, I AM OF THE CONSIDERED VIEW T HAT LD. CIT(A) HAS PASSED A WELL REASONED AND SPEAKING ORDER WHICH DOES NOT ITA NO. 3974/DEL/2014 A.Y. 2005-06 16 REQUIRE INTERFERENCE ON MY PART, HENCE, I UPHOLD TH E ORDER OF THE LD. CIT(A) AND DISMISS THE APPEAL FILED BY THE REVENUE. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01/07/2016. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 01/07/2016 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES