RAM NARAYAN, Kota V. ITO, Kota

ITA 428/JPR/2014

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9712 (ITAT-JAIPUR)
• Duration Of Justice: 5 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 30-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JAI SINGH CIT DHK
• Assessee Lawyers: NARESH GU PTA
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Invalid notice; Assessment record; Reassessment proceedings
• Section: 54B; 50C; 54F; 142(1); 147; 148; 6; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA NO. 428/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09. SHRI RAM NARAYAN S/O LATE SHRI NANDA JI R/O KUMHARON KA MOHALLA, NEAR AKAWAD HOUSE, CHHAWANI, KOTA. CUKE VS. THE INCOME TAX OFFICER, WARD 2(1), KOTA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AVVPG 9786 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI NARESH GUPTA (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SHRI JAI SINGH (ADDL. CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 16.05.2019. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 28/06/2019. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 25 TH MARCH, 2014 OF LD. CIT (A), KOTA FOR THE ASSESSMENT YEAR 2 008-09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS :- 2 ITA NO. 428/JP/2014 SHRI RAM NARAYAN, KOTA. 3 ITA NO. 428/JP/2014 SHRI RAM NARAYAN, KOTA. GROUND NOS. 1 TO 3 ARE REGARDING VALIDITY OF REASSE SSMENT ORDER PASSED UNDER SECTION 147 READ WITH SECTION 144 OF T HE IT ACT FOR WANT OF VALID SERVICE OF NOTICE UNDER SECTION 148 OF THE IT ACT. 2. THE ASSESSEE IS AN INDIVIDUAL AND NOT FILED ANY RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION. THE AO RECEIVED THE INFORMATIO N THAT THE ASSESSEE HAS SOLD LAND DURING THE YEAR UNDER CONSIDERATION FOR A SALE CONSIDERATION OF RS. 50,00,000/- WHICH WAS VALUED BY STAMP DUTY AUTHORITY AT RS. 60, 30,000/-. ACCORDINGLY, THE AO ISSUED A NOTICE UNDER SECTION 148 ON 29.12.2009 WHI CH WAS STATED TO BE SERVED ON THE ASSESSEE ON 30.12.2009 THROUGH THE WIFE OF THE ASSESSEE. THEREAFTER THE AO ALSO ISSUED NOTICE UNDER SECTION 142(1) BUT THERE W AS NO COMPLIANCE ON THE PART OF THE ASSESSEE. THE AO COMPLETED THE ASSESSMENT UNDE R SECTION 144 READ WITH SECTION 147 ON 20 TH DECEMBER, 2010 AT LONG TERM CAPITAL GAIN OF RS. 49 ,95,330/-. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT (APPEALS) AND ALSO DISPUTED THE SERVICE OF NOTICE UNDER SECTION 148. THE LD. CIT (A) HELD THAT THE NOTICE ISSUED BY THE AO UNDER SECTION 148 WAS SERVE D UPON THE ASSESSEE AND, THEREFORE, THE GROUND RAISED BY THE ASSESSEE WAS DI SMISSED. 4 ITA NO. 428/JP/2014 SHRI RAM NARAYAN, KOTA. 3. BEFORE US, THE LD. A/R OF THE ASSESSEE HAS SUBMI TTED THAT THE ALLEGED SERVICE CLAIMED BY THE DEPARTMENT IS NOT A VALID SERVICE OF NOTICE UNDER SECTION 148. HE HAS SUBMITTED THAT THE NAME OF WIFE OF THE ASSESSEE IS SMT. BHURA BAI WHEREAS THE SIGNATURE ON THE SAID NOTICE WAS TAKEN OF SMT. PUSH PA BAI. THE ASSESSEE HAS EXPLAINED BEFORE THE LD. CIT (A) THAT THERE IS NO P ERSON BY THE NAME OF SMT. PUSHPA BAI IN THE FAMILY OF THE ASSESSEE AND, THEREFORE, T HERE IS NO SERVICE OF NOTICE UNDER SECTION 148 OF THE IT ACT AND CONSEQUENTLY THE ASSE SSMENT FRAMED UNDER SECTION 144 READ WITH SECTION 148 IS NOT SUSTAINABLE FOR WA NT OF NOTICE. THE AO HAS NOWHERE STATED AS TO WHEN THE NOTICE UNDER SECTION 148 WAS SERVED. THERE IS VAGUE STATEMENT THAT NOTICE DATED 29.12.2009 WAS SERVED B Y HAND ON THE ASSESSEE. THE LD. A/R HAS SUBMITTED THAT THE ASSESSEE HAS SHIFTED FROM RAIPURA TO CHHAWANI AFTER SELLING THE AGRICULTURAL LAND IN THE MONTH OF SEPTE MBER, 2007, THEREFORE, THERE IS NO SCOPE OF SERVING THE NOTICE UNDER SECTION 148 AT TH E SAME ADDRESS FROM WHERE THE ASSESSEE ALREADY SHIFTED. THE LD. A/R HAS FURTHER SUBMITTED THAT THE SUBSEQUENT NOTICES ISSUED UNDER SECTION 142(1) WERE ALSO CLAIM ED TO HAVE BEEN SERVED ON MINOR DAUGHTER (ANJU) AND MINOR GRANDSON (DINESH) WHO LIV ES AT THE OLD ADDRESS OF RAIPURA WHERE THE ASSESSEE DID NOT STAY. HE HAS RE FERRED TO THE BIRTH CERTIFICATES OF THESE TWO CHILDREN TO SHOW THAT THEY WERE MINOR AT THE TIME OF ALLEGED SERVICE. THEREFORE, THERE WAS NO VALID SERVICE OF NOTICE ISS UED UNDER SECTION 148 OF THE IT ACT. THE LD. A/R THEN REFERRED TO THE PROCEEDINGS UNDER WHICH THIS TRIBUNAL TRIED TO RESOLVE THE ISSUE BY REFERRING THE DISPUTED SIGNATU RE AND THE SIGNATURE OF WIFE OF THE ASSESSEE TO CENTRAL FORENSIC SCIENCE LABORATORY (CF SL), CHANDIGARH AND SUBMITTED THAT EVEN THE REPORT OF THE CFSL, CHANDIGARH HAS NO T PROVED THE FACT THAT THE ALLEGED SIGNATURE ON THE NOTICE UNDER SECTION 148 W AS OF THE WIFE OF THE ASSESSEE. 5 ITA NO. 428/JP/2014 SHRI RAM NARAYAN, KOTA. ONCE THE AO FAILED TO PROVE THE SERVICE OF NOTICE U NDER SECTION 148 OF THE ACT, THEN THE SUBSEQUENT ASSESSMENT ORDER IS NOT VALID AND LI ABLE TO BE QUASHED. THE LD. A/R HAS ALSO CONTENDED THAT THE REVENUE HAS NOT PROVED THAT THE NOTICES WERE SERVED AS PER PROCEDURE LAID DOWN IN SECTION 282 OF THE IT AC T READ WITH ORDER 5 OF CPC. HE HAS RELIED UPON THE DECISION OF HONBLE SUPREME COU RT IN CASE OF Y. NARAYANA CHETTY AND ANOTHER VS. ITO, 35 ITR 388 (SC) AND SUBMITTED THAT THE NOTICE FOR INITIATING THE REASSESSMENT PROCEEDINGS IS NOT MERE PROCEDURAL REQ UIREMENT BUT IT IS A CONDITION PRECEDENT TO THE VALIDITY OF ANY REASSESSMENT. IF NO NOTICE ISSUED OR IF THE NOTICE ISSUED IS SHOWN TO BE INVALID, THEN THE PROCEEDINGS TAKEN BY THE ASSESSEE WITHOUT A NOTICE OR IN PURSUANCE OF AN INVALID NOTICE WOULD B E ILLEGAL AND VOID. HE HAS ALSO RELIED UPON THE FOLLOWING DECISIONS :- CIT VS. KURBAN HUSSAIN IBRAHIMJI MITHIBORWALA 82 ITR 821 (SC) SMT. S. NACHIAR VS. ITO & OTHERS 326 ITR 77 (MAD.) CIT VS. CHETAN GUPTA 382 ITR 613 (DEL.) KM. TEENA GUPTA VS. CIT 400 ITR 376 (ALL.) THUS THE LD. A/R HAS CONTENDED THAT THERE IS NO VAL ID SERVICE OF NOTICE UNDER SECTION 148 ON THE ASSESSEE AND THEREFORE, THE ASSESSMENT O RDER PASSED BY THE AO IS LIABLE TO BE QUASHED. 4. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T THE ASSESSEE HAS DISPUTED THE SERVICE OF NOTICE WHEREAS THE LD. CIT (A) HAS D ISCUSSED THIS ISSUE BY ANALYZING THE RELEVANT RECORD AND IT WAS FOUND THAT THE NOTIC ES ISSUED UNDER SECTION 142(1) 6 ITA NO. 428/JP/2014 SHRI RAM NARAYAN, KOTA. WERE ALSO RECEIVED BY THE FAMILY MEMBERS OF THE ASS ESSEE. HOWEVER, THE ASSESSEE HAS NOT DISPUTED THE SERVICE OF THOSE NOTICES. THE ASSESSEE IS NON-COOPERATIVE RIGHT FROM THE VERY BEGINNING AS DESPITE VARIOUS OPPORTUN ITIES AND NOTICES ISSUED BY THE AO, THERE WAS NO COMPLIANCE ON BEHALF OF THE ASSESS EE. THE ASSESSEE HAS CHALLENGED THE SERVICE OF NOTICE TO DEFEAT THE ASSE SSMENT PROCEEDINGS AND TO AVOID THE DUE TAX. THE LD. D/R HAS FILED THE RECORD OF D ESPATCH REGISTER AS WELL AS COPIES OF THE NOTICES ISSUED BY THE AO WHICH WERE SERVED U PON THE FAMILY MEMBERS OF THE ASSESSEE. THE LD. D/R HAS FURTHER POINTED OUT THAT THE NOTICE UNDER SECTION 142(1) DATED 1 ST DECEMBER, 2010 WAS EVEN SERVED UPON THE ASSESSEE A ND THE ASSESSEE HAS NOT DISPUTED THE SERVICE OF THE SAME. THE SAID NOT ICE WAS ALSO SERVED AT THE SAME ADDRESS AT WHICH THE OTHER EARLIER NOTICES WERE ISS UED. THEREFORE, THE ENTIRE CONTENTION OF THE ASSESSEE IS AN AFTER-THOUGHT SELF SERVING STAND. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. SINCE THE ASSESSEE HAS DISPUTED THE SERVIC E OF NOTICE DATED 29.12.2009 ISSUED UNDER SECTION 148 OF THE IT ACT, THEREFORE, WE WILL DECIDE FIRST THE FACT WHETHER THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT WAS SERVED ON THE ASSESSEE OR NOT. AS PER DEPARTMENTS RECORD, THE SAID NOTIC E WAS SERVED THROUGH PROCESS SERVER AND ONE PUSHPA BAI HAS RECEIVED THE NOTICE O N 30.12.2009. THE ASSESSEE HAS TAKEN A STAND THAT THERE IS NO PERSON IN THE FA MILY OF THE ASSESSEE BY THE NAME OF PUSHPA BAI. THE ASSESSEE HAS SUBMITTED THAT THE NAME OF THE WIFE OF THE ASSESSEE IS SMT. BHURA BAI. IN SUPPORT OF HIS CONTE NTION, THE ASSESSEE FILED THE VOTER ID CARD OF SMT. BHURA BAI AS WELL AS OTHER DOCUMENT S OF PURCHASE AND SALE OF LAND ON WHICH SHE HAS SIGNED AS BHURA BAI. THE ASSESSEE HAS ALSO PRODUCED HIS WIFE BEFORE THE TRIBUNAL AND REQUESTED FOR EXAMINATION O F HER SIGNATURE. THE TRIBUNAL ON 7 ITA NO. 428/JP/2014 SHRI RAM NARAYAN, KOTA. 23 RD APRIL, 2018 ON THE APPLICATION OF THE ASSESSEE ABO UT THE VERIFICATION OF SIGNATURE, TRIED TO TAKE THE SPECIMEN SIGNATURES OF WIFE OF THE ASSESSEE. HOWEVER, SHE HAS WRITTEN HER NAME AS SMT. BHURA BAI AND REFU SED TO WRITE PUSHPA BAI. THIS ATTITUDE OF THE LADY CLEARLY SHOWS THAT SHE WAS TUT ORED NOT TO WRITE PUSHPA BAI. IN THOSE CIRCUMSTANCES THE TRIBUNAL AFTER TAKING THE S AID SIGNATURE BEING BHURA BAI SENT ALONG WITH THE DISPUTED SIGNATURE TO CFSL HYDE RABAD THEN TO CFSL CHANDIGARH. HOWEVER, THE SAID EXERCISE WAS WITHOUT ANY RESULT. THE CFSL CHANDIGARH RETURNED BACK THE DOCUMENTS CONTAINING SPECIMEN SIGNATURES W ITH THE REMARKS THAT THE TWO SIGNATURES MARKED EXHIBIT A-1 AND A-2 ARE NOT COMPA RABLE WITH THE WRITING FEATURES OF THE WRITINGS/SIGNATURE MARKED. IT WAS ALSO POIN TED OUT THAT THE PRINCIPLE OF HANDWRITING IDENTIFICATION IS LIKE IS COMPARED WIT H LIKE AND, THEREFORE, TWO SIGNATURES HAVING DIFFERENT LETTERS AND NOT HAVING A COMMON LETTER CANNOT BE COMPARED. FOR READY REFERENCE, WE REPRODUCE THE CF SL CHANDIGARH REPORT DATED 19 TH SEPTEMBER, 2018 AS UNDER :- RESULT OF EXAMINATION THE DOCUMENTS OF THIS CASE HAVE BEEN CAREFULLY AND THOROUGHLY EXAMINED. ON PERUSAL OF THE DOCUMENTS OF THIS CASE, IT IS OBS ERVED THAT WRITINGS/SIGNATURE MARKED A1 (EXHIBIT-A1) AND A2 (E XHIBIT-A2) HAVE BEEN SUPPLIED FOR COMPARISON/EXAMINATION. IT HAS NO T BEEN POSSIBLE TO EXPRESS ANY OPINION REGARDING THE AUTHORSHIP OR OTH ERWISE ON THE WRITINGS/SIGNATURES MARKED A1 AND A2, FOR THE MANIF EST REASON THAT WRITING FEATURES OF THE WRITINGS/SIGNATURE MARKED A 1 ARE NOT COMPARABLE WITH THE WRITING FEATURES OF THE WRITING S/SIGNATURE MARKED A2. IT DESERVES TO MENTION HERE THAT THE PRINCIPLE OF HANDWRITING IDENTIFICATION IS LIKE IS COMPARED WITH LIKE. 8 ITA NO. 428/JP/2014 SHRI RAM NARAYAN, KOTA. THEREFORE, IN THIS CONNECTION IT IS INFORMED THAT T HE QUESTIONED DOCUMENTS (ALL ORIGINALS) CONTAINING WRITINGS/SIGNA TURES MAY BE GOT ENCIRCLED WITH PENCIL AND MARKED AS Q1, Q2, Q3, Q4 ...... FOR COMPARISON, SUFFICIENT NUMBER OF SPECIMEN WRITINGS/ SIGNATURES MAY BE GOT OBTAINED FROM THE PERSON (S) CONCERNED CONTAINI NG SIMILAR LETTERS AND THEIR COMBINATIONS AS OCCURRING IN THE QUESTION ED WRITINGS/SIGNATURES AND ENCIRCLED WITH PENCIL AND M ARKED AS S1, S2, S3 .... SIMILARLY, SUFFICIENT ADMITTED GENUINE WRITIN GS/SIGNATURES WRITTEN IN NORMAL COURSE OF ROUTINE BY THE PERSON (S) CONCERNE D ON SOME EXISTING DOCUMENTS, CONTAINING SIMILAR LETTERS & THEIR COMBI NATIONS AS OCCURRING IN THE QUESTIONED WRITINGS/SIGNATURES MAY BE OBTAIN ED AND ENCIRCLED WITH PENCIL AND MARKED AS A1, A2 A3 .... A QUESTIO NNAIRE ILLUSTRATING THE DETAILS OF QUESTIONED AND STANDARD (SPECIMEN/AD MITTED) WRITINGS/SIGNATURES AND SPECIFIC QUERY TO THE EFFEC T THAT WHICH WRITINGS/SIGNATURES ARE TO BE COMPARED WITH WHOM, M AY ALSO BE PREPARED AND SENT ALONG WITH THE DOCUMENTS. EVEN OTHERWISE, WE FIND THAT THE DISPUTED SIGNATURE AND THE SPECIMEN SIGNATURES HAVE NOT A SINGLE ALPHABET/LETTER OF VERNACULAR IN COMMON. THEREFORE, THESE TWO WRITTEN WORDS CANNOT BE COMPARED. ACCORDINGLY, THE SAID EXERCISE OF VERIFICATION OF THE SIGNATURE REMAINED INCONCLUSIVE DUE TO UNSUCCES SFUL ATTEMPT FOR GETTING THE SIGNATURE VERIFIED, WE PROCEED ON THE BASIS OF MATE RIAL ON RECORD. THE ASSESSEE HAS TAKEN A STAND THAT AFTER SALE OF THE LAND VIDE SALE DEED DATED 24 TH SEPTEMBER, 2007 THE ASSESSEE SHIFTED FROM THE SAID PLACE. HOWEVER, WE FIND THAT ALL OTHER NOTICES ISSUED BY THE AO UNDER SECTION 142(1) WERE SERVED A T THE SAME PLACE. SOME OF THEM WERE SERVED THROUGH THE FAMILY MEMBERS OF THE ASSESSEE AND NOTICE DATED 01.12.2010 WAS SERVED ON THE ASSESSEE IN PERSON. FO R SAKE OF COMPLETENESS, WE REPRODUCE THE SAID NOTICE AS UNDER :- 9 ITA NO. 428/JP/2014 SHRI RAM NARAYAN, KOTA. THE ASSESSEE HAS NOT DISPUTED THE RECEIPT OF THE SA ID NOTICE DATED 01.12.2010. HOWEVER, THERE WAS NO COMPLIANCE EVEN TO THE SAID N OTICE BY THE ASSESSEE. WE FIND THAT IF THE ASSESSEE WOULD HAVE COMPLIED WITH ANY O F THE NOTICES ISSUED UNDER SECTION 142(1) AND IF IT WOULD HAVE BEEN POINTED OU T THAT THERE WAS NO SERVICE OF NOTICE UNDER SECTION 148, THEN A FRESH SERVICE COUL D HAVE BEEN EFFECTED ON THE 10 ITA NO. 428/JP/2014 SHRI RAM NARAYAN, KOTA. ASSESSEE AS THERE WAS NO ISSUE OF LIMITATION IN THE CASE IN HAND. THE LD. A/R OF THE ASSESSEE HAS RAISED VARIOUS CONTENTIONS ABOUT THE S ERVICE OF NOTICES TO THE MINOR FAMILY MEMBERS OF THE ASSESSEE. HOWEVER, WE FIND T HAT THOSE NOTICES WERE SERVED NOT ONLY ON ONE PERSON BUT THESE WERE ISSUED TO VAR IOUS PERSONS INCLUDING ONE SHRI JAGDISH SON OF THE ASSESSEE ALONG WITH THE MOBILE N UMBER OF THE SAID PERSON AND THEN IT WAS ALSO SIGNED BY TWO OTHER PERSONS WITH T HE PARTICULARS OF RELATION. THEREFORE, THE SAID NOTICE DATED 03.09.2010 WAS REC EIVED BY THE SON OF THE ASSESSEE AND ALSO SIGNED BY GRANDDAUGHTER AND GRANDSON OF TH E ASSESSEE WITH THEIR MOBILE NUMBERS AND THE ASSESSEE HAS NOT DISPUTED THOSE PAR TICULARS. EVEN IF THE NOTICES WERE RECEIVED BY THE MINOR FAMILY MEMBERS OF THE AS SESSEE AND IF THE SAME WERE BROUGHT TO THE KNOWLEDGE OF THE ASSESSEE, IT WILL B E A PROPER SERVICE. ONLY WHEN THE NOTICE RECEIVED BY THE MINOR AND NOT BROUGHT TO THE KNOWLEDGE OF THE ASSESSEE THEN THE SAME WILL NOT BE TREATED AS PROPER SERVICE. TH ERE IS NO QUARREL ON THE POINT THAT THE ISSUANCE OF NOTICE UNDER SECTION 148 AND VALID SERVICE OF THE SAME ON THE ASSESSEE IS A MANDATORY PRE CONDITION FOR REASSESSM ENT MADE UNDER SECTION 147 OF THE ACT. THE AO HAS GIVEN THE DETAILS OF VARIOUS N OTICES ISSUED TO THE ASSESSEE AT PAGE 2 OF THE IMPUGNED ORDER AS UNDER :- SR. NO. NOTICE/LETTER DATED MODE OF SERVICE COMPLI ANCE 1. 29.12.2009 NOTICE U/S 148 BY HAND NON - COMPLIANCE 2. 13.07.2010 NOTICE U/S 142(1) BY HAND TO ANJU (GRAND DAUGHTER) NON - COMPLIANCE 3. 03.09.2010 BY HAND TO DINESH (GRAND SON) NON - COMPLIANCE 4. 11.10.2010 BY HAND TO DINESH (GRAND SON) NON - COMPLIANCE 11 ITA NO. 428/JP/2014 SHRI RAM NARAYAN, KOTA. 5.1. APART FROM THESE DETAILS, THE FINAL NOTICE DAT ED 01.12.2010 WAS SERVED ON THE ASSESSEE IN PERSON. THUS IT IS CLEAR THAT DESPITE A LL THESE NOTICES, THE ASSESSEE DELIBERATELY DID NOT ATTEND THE PROCEEDINGS BEFORE THE AO AND SUBSEQUENTLY CHALLENGED THE ASSESSMENT ORDER. IT IS STRANGE TO N OTE THAT THE ASSESSEE HAS DISPUTED THE SERVICE OF NOTICE ISSUED BY THE AO WHE REAS SERVICE OF THE ASSESSMENT ORDER PASSED BY THE AO WAS NOT DISPUTED BY THE ASSE SSEE AND IMMEDIATELY CHALLENGED THE SAME BEFORE THE LD. CIT (A). THIS CO NDUCT OF THE ASSESSEE CLEARLY ESTABLISHED THAT THE ASSESSEE WAS DELIBERATELY AVOI DING THE PROCEEDINGS BEFORE THE AO. THE LD. CIT (A) HAS ALSO REFERRED TO THE NOTIC E DATED 10.12.2010 WHICH IS MADE ANNEXURE TO THE IMPUGNED ORDER WHEREIN NOTICE WAS R ECEIVED BY ONE MANJU, GRANDDAUGHTER AND THUMB IMPRESSION OF THE WIFE OF T HE ASSESSEE IS PUT ON THE NOTICE, THE PARTICULARS OF THE WIFE ARE WRITTEN A S BHURA BAI ALIAS PUSHPA BAI. SERVICE OF THIS NOTICE IS NOT DISPUTED BY THE ASSESSEE. TH EREFORE, ALL THESE FACTS CLEARLY ESTABLISHED THAT THE ASSESSEE WAS HAVING KNOWLEDGE OF ALL THE NOTICES ISSUED BY THE AO BUT CHOSEN NOT TO PARTICIPATE IN THE PROCEEDINGS BEFORE THE AO AND THEREAFTER CHALLENGED THE VERY SERVICE OF THE NOTICE ISSUED UN DER SECTION 148 OF THE IT ACT. THE LD. CIT (A) HAS DECIDED THIS ISSUE IN PARA 4.12 AS UNDER :- 4.12. GROUND NO.1: THE ASSESSEE CHALLENGED REOPENING OF THE ASSESSMENT U/S 148 ON THE GROUND THAT NO NOTICE U/S 148 WAS SERVED ON THE ASS ESSEE. THE ASSESSEE SUBMITTED AN AFFIDAVIT FROM ASSESSEE THAT NO NOTICE WAS SERVED ON HIM. I HAVE GONE THROUGH THE ASSESSMENT RECORD AND IT WA SEEN THAT NOTICE U/S 148 WAS SERVED ON ONE PUSHPA BAI. THE ASSESSE E CONTENDED THAT THERE IS NO PERSON BY THE NAME OF PUSHPA BAI IN HIS FAMILY. 12 ITA NO. 428/JP/2014 SHRI RAM NARAYAN, KOTA. THE AO WAS ASKED TO COMMENT ON THE SAME AND THE AO SUBMITTED THAT HE HAD ENQUIRED FROM SHRI KALU RAM (SON OF ASS ESSEE) AND GATHERED THAT SMT. PUSHPA BAI IS WIFE OF ASSESSEE A ND NOTICE WAS RIGHTLY SERVED UPON THE FAMILY MEMBER OF ASSESSEE. IN REBUTTAL, THE ASSESSEE SUBMITTED THAT THERE IS N O PERSON BY THE NAME OF SHRI KALU RAM IN THE FAMILY OF ASSESSEE, TH E NAME OF ASSESSEES SON IS KALU LAL. IT WAS ALSO SUBMITTED THAT ASSESSEES WIFES NAME IS SMT. BHURA BAI AND THERE IS NO MATERIAL ON RECORD TO PROVE THAT ASSESSEES WIFE IS SMT. PUSHPA BAI. THE A/R OF THE ASSESSEE WAS ASKED TO PRODUCE THE AS SESSEE SO THAT HE MAY BE EXAMINED TO FIND THE TRUTH, HOWEVER, THE A/R SUBMITTED THAT ASSESSEE IS CONFINED TO BED AND THEREFORE, HE CANNO T ATTEND THE PROCEEDING. THE ASSESSEE SUBMITTED THAT THIS HAPPEN ED BECAUSE OF BRAIN HEMORRHAGE IN THE MONTH OF JANUARY, 2012, HOW EVER, BEFORE LOOSING HIS SENSES PRIOR TO BRAIN ATTACK, IT WAS TO LD BY THE APPELLANT THAT NO NOTICE U/S 148 WAS SERVED UPON HIM. I HAVE GONE THROUGH THE CASE RECORD AND IT WAS SEEN THAT ONE LETTER DATED 10.12.2010 WAS SERVED UPON ASSESSEES WIFE AN D ALONGWITH HIS THUMB IMPRESSION IT WAS WRITTEN (WIFE) BHURA BAI AL IAS PUSHPA BAI, THIS LETTER IS PLACED AS ANNEXURE-A TO THIS ORDER. IN VIEW OF THE ABOVE, IT IS HELD THAT SMT. BHURA BA I & SMT. PUSHPA BAI ARE ONE AND THE SAME PERSON AND ASSESSEE HAS TAKEN A FALSE PLEA WITH A VIEW TO OBTAIN A WRONG DECISION. IT IS ALSO HELD THAT NOTICE WAS RIGHTLY SERVED ON THE WIFE OF ASSESSEE (SMT. BHURA BAI ALIA S SMT. PUSHPA BAI). SUBSEQUENT NOTICES U/S 142(1) WERE ALSO RECEIVED BY OTHER FAMILY MEMBERS OF THE ASSESSEE. NOW THE QUESTION ARISES WHETHER SERVICE OF NOTICE O N WIFE OF ASSESSEE CAN BE TREATED AS PROPER SERVICE OR NOT. SERVICE OF NOTICE IS TO BE MADE AS PER SECTION 282 OF THE I.T. ACT. SECTION 282 PROVIDES THAT PERSONAL SERVICE OF NOTIC E IS TO BE MADE IN A MANNER PROVIDED UNDER THE CODE OF CIVIL PROCEDURE, 1908. SUB-RULE 15 OF CODE OF CIVIL PROCEDURE, RELATED TO SERVICE OF N OTICE PROVIDES AS UNDER :- WHERE IN ANY SUIT, THE DEFENDANT IS ABSENT FROM H IS RESIDENCE AT THE TIME WHEN THE SERVICE OF SUMMONS IS SOUGHT T O BE EFFECTED ON HIM AT HIS RESIDENCE AND THERE IS NO LI KELIHOOD OF HIS BEING FOUND AT THE RESIDENCE WITHIN A REASONABLE TI ME AND HE HAS NO AGENT EMPOWERED TO ACCEPT SERVICE OF THE SUM MONS ON HIS BEHALF, SERVICE MAY BE MADE ON ANY ADULT MEMBER OF THE FAMILY, WHETHER MALE OR FEMALE, WHO IS RESIDING WIT H HIM. 13 ITA NO. 428/JP/2014 SHRI RAM NARAYAN, KOTA. FROM THE ABOVE, IT CAN BE CONCLUDED THAT ASSESSEE W AS NOT AVAILABLE ON THE GIVEN ADDRESS AND THAT HE HAD NOT APPOINTED ANY AGENT FOR RECEIVING NOTICES AND THAT THERE WAS NO LIKELIHOOD OF HIS BEING FOUND AT THE RESIDENCE WITHIN A REASONABLE TIME. THEREFORE, SERVICE OF NOTICE ON THE WIFE OF ASSESSEE HAS TO BE TREATED AS PROPER SE RVICE OF NOTICE. THIS GROUND OF APPEAL IS THEREFORE, DISMISSED. GROUND NO. 1.1. I HAVE GONE THROUGH THE RECORDS AND IT WAS SEEN THA T ASSESSEE WAS GIVEN SUFFICIENT OPPORTUNITY. LAST OPPORTUNITY WAS GIVEN VIDE LETTER DATED 10.12.2010 (ANNEXURE-A TO THIS ORDER) WHICH W AS SERVED ON WIFE OF ASSESSEE AND HIS GRAND DAUGHTER. THIS GROUND OF APPEAL IS THEREFORE DISMISSED. 5.2. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES A S DISCUSSED, WE FIND THAT THE CONTENTION OF THE ASSESSEE IS CONTRARY TO THE RECOR D AND FURTHER ONCE THE AO HAS ISSUED A NOTICE UNDER SECTION 148 DATED 29.12.2009 WHICH IS ALSO ESTABLISHED FROM THE DESPATCH REGISTER FILED BEFORE US, THEN THE DIS PUTE OF THE SERVICE OF THE SAME WILL NOT RENDER THE ASSESSMENT PROCEEDINGS NULL AND VOID. THE NOTICE UNDER SECTION 148 WAS DULY ISSUED BY THE AO AND IT WAS ALSO ATTEM PTED TO SERVE ON THE ASSESSEE AT THE GIVEN ADDRESS. THE ADDRESS IS NOT DISPUTED THOUGH THE ASSESSEE HAS CLAIMED TO HAVE SHIFTED FROM THE SAID ADDRESS. HOWEVER, ALL SUBSEQUENT NOTICES ISSUED BY THE AO EVEN ONE DATED 01.12.2010 WAS RECEIVED BY THE AS SESSEE IN PERSON ISSUED AT THE SAME ADDRESS, THEN THE NOTICE ISSUED AT THE CORRECT ADDRESS WITH THE REPORT OF THE PROCESS SERVER IN THE LIGHT OF THE SUBSEQUENT NOTIC E ISSUED AT THE SAME ADDRESS RECEIVED BY THE ASSESSEE WOULD BE DEEMED TO BE A PR OPER SERVICE OF THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT. ACCORDINGLY, WE DO NOT FIND ANY ERROR OR IRREGULARITY IN THE IMPUGNED ORDER OF THE LD. CIT ( A) QUA THIS ISSUE. 14 ITA NO. 428/JP/2014 SHRI RAM NARAYAN, KOTA. GROUND NO. 4 & 5 ARE REGARDING DENIAL OF EXEMPTION UNDER SECTION 54F AND 54B OF THE ACT. 6. THOUGH THERE WAS NO RETURN OF INCOME FILED BY TH E ASSESSEE AND ALSO THERE IS NO APPEARANCE BEFORE THE AO, HOWEVER, THE ASSESSEE MADE A CLAIM OF DEDUCTION UNDER SECTION 54F AND 54B OF THE ACT BEFORE THE LD. CIT (A). THE LD. CIT (A) CALLED FOR A REMAND REPORT FROM THE AO AND FOUND THAT THE ASSESSEE HAS FAILED TO PRODUCE ANY DOCUMENTARY EVIDENCE TO SHOW THAT THE INVESTMEN T WAS MADE FOR PURCHASE OF AGRICULTURAL LAND AND CONSTRUCTION OF HOUSE. ONLY SOME UNREGISTERED AGREEMENTS WERE PRODUCED BY THE ASSESSEE WHEREIN THE PAYMENT I N CASH WAS CLAIMED. 7. BEFORE US, THE LD. A/R OF THE ASSESSEE HAS SUBMI TTED THAT THE CLAIM OF DEDUCTION UNDER SECTION 54F WAS DENIED ON THE GROUN D THAT THE ASSESSEE HAS PURCHASED THE AGRICULTURAL LAND OF RS. 1,50,000/- I N THE NAME OF WIFE. FURTHER, THE ASSESSEE HAS ALSO PURCHASED AGRICULTURAL LAND OF RS . 40,00,100/- AND A HOUSE IN THE NAME OF WIFE FOR RS. 7,20,000/- AND CLAIMED DEDUCTI ON UNDER SECTION 54B AND 54F OF THE IT ACT. THUS THE LD. A/R HAS SUBMITTED THAT ON CE THE ASSESSEE HAS PRODUCED THE DOCUMENTS THROUGH WHICH THE ASSESSEE HAS MADE THE I NVESTMENT THEN THE CLAIM OF DEDUCTION UNDER SECTION 54B AND 54F CANNOT BE DENIE D MERELY ON THE GROUND THAT THE INVESTMENT WAS MADE IN THE NAME OF WIFE. IN S UPPORT OF HIS CONTENTION HE HAS RELIED UPON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT DATED 07.11.2017 IN CASE OF LAXMI NARAYAN AND OTHERS VS. CIT IN DB IT A PPEAL NOS. 20/2016, 118/2017, 136/2017. THE LD. A/R OF THE ASSESSEE HAS ALSO REL IED UPON THE DECISION OF HONBLE SUPREME COURT IN CASE OF SANJEEV LAL AND ANOTHER VS . CIT, 365 ITR 389 (SC) IN SUPPORT OF THE CONTENTION THAT THE TRANSFER THROUGH AGREEMENT TO SALE WAS TREATED AS 15 ITA NO. 428/JP/2014 SHRI RAM NARAYAN, KOTA. TRANSFER IN TERMS OF SECTION 2(47) OF THE IT ACT. H E HAS ALSO RELIED UPON THE DECISION IN CASE OF CIT VS. RAJASTHAN MIRROR MANUFACTURING C O. 260 ITR 503 (RAJ.). 8. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T THE ASSESSEE HAS NOT PRODUCED ANY TITLE DOCUMENT REGARDING ACQUIRING THE NEW ASSET EVEN IN THE NAME OF WIFE. THE ASSESSEE HAS PRODUCED UNREGISTERED AGREE MENT TO SALE AND CLAIMED THAT THE PAYMENT WAS MADE IN CASH. HE HAS RELIED UPON TH E ORDER OF THE LD. CIT (A). 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE CLAIMED TO HAVE PURCHASED LAN D ON 23 RD SEPTEMBER, 2009 THROUGH AN AGREEMENT TO SALE. THERE IS NO DISPUTE T HAT THE ALLEGED AGREEMENT TO SALE IS UNREGISTERED AND THE PAYMENT IS ALSO CLAIME D TO HAVE BEEN MADE IN CASH. THE ASSESSEE HAS NOT PRODUCED ANY OTHER DOCUMENT TO SHOW THAT THE ASSESSEE HAS ACQUIRED THE OWNERSHIP TITLE IN LAND IN QUESTION. WE FIND THAT IF AN AGRICULTURAL LAND IS PURCHASED BY THE ASSESSEE FROM THE SALE PROCEEDS OF THE EXISTING LAND, THEN EVEN IF THE SAID LAND IS PURCHASED IN THE NAME OF THE WI FE, THE CLAIM OF DEDUCTION UNDER SECTION 54B IS ALLOWABLE. HOWEVER, IN THE CASE IN HAND, DESPITE THE EXPIRY OF ABOUT 10 YEARS FROM THE ALLEGED AGREEMENT TO SALE THE ASS ESSEE HAS ADMITTED THAT NO SALE DEED HAS BEEN EXECUTED TILL DATE. THOUGH THE AGREEM ENT TO SALE WHICH HAS FINALLY CULMINATED IN SALE DEED IS RELEVANT ONLY FOR THE PU RPOSE OF THE DATE OF INVESTMENT, BUT THE ALLEGED AGREEMENT TO SALE ITSELF IS NOT A T ITLE DOCUMENT TRANSFERRING THE OWNERSHIP OF LAND. THEREFORE, IN THE ABSENCE OF SUB SEQUENT SALE DEED, THE CLAIM OF DEDUCTION UNDER SECTION 54B AND 54F CANNOT BE ALLOW ED BASED ON SUCH UNREGISTERED AGREEMENT TO SALE. THE ASSESSEE HAS FAILED TO PROV E THAT HE HAS ACQUIRED THE NEW ASSET WITHIN THE PRESCRIBED PERIOD AFTER THE SALE O F THE EXISTING ASSET. FURTHER THE PURCHASE OF AGRICULTURAL LAND THROUGH AGREEMENT TO SALE DATED 23 RD SEPTEMBER, 2009 16 ITA NO. 428/JP/2014 SHRI RAM NARAYAN, KOTA. CLEARLY SHOWS THAT THE ASSESSEE HAS MANAGED THAT AG REEMENT ONLY A DAY BEFORE THE EXPIRY OF THE PERIOD. HOWEVER, WHEN THERE IS NO SU BSEQUENT SALE DEED, THEN THE UNREGISTERED AGREEMENT WILL NOT TRANSFER ANY TITLE TO THE ASSESSEE OF THE AGRICULTURAL LAND. ACCORDINGLY WE DO NOT FIND ANY MERIT OR SUBS TANCE IN THE CLAIM OF DEDUCTION UNDER SECTION 54B AND 54F OF THE IT ACT. THE DECI SIONS RELIED UPON BY THE ASSESSEE ARE NOT DIRECTLY ON THE POINT AND FURTHER AFTER THE AMENDMENT IN THE TRANSFER OF PROPERTY ACT AS WELL AS REGISTRATION ACT WITH EFFEC T FROM 2001, THE REGISTRATION IS A MANDATORY CONDITION FOR APPLICABILITY OF SECTION 53 A OF TRANSFER OF PROPERTY ACT. ACCORDINGLY THE DECISIONS RELIED UPON BY THE LD. A/ R WILL NOT HELP THE CASE OF THE ASSESSEE WHEN THERE IS NO TITLE DOCUMENT TRANSFERRI NG THE OWNERSHIP. GROUND NO. 6 IS REGARDING APPLICABILITY OF SECTION 50C OF THE IT ACT. 10. SINCE THE DEDUCTION ITSELF IS NOT ALLOWABLE, TH EREFORE, THIS GROUND OF THE ASSESSEES APPEAL BECOMES INFRUCTUOUS. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 28/06/201 9. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 28/06/2019. DAS/ 17 ITA NO. 428/JP/2014 SHRI RAM NARAYAN, KOTA. VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT-SHRI RAM NARAYAN, KOTA. 2. THE RESPONDENT THE ITO WARD 2(1), KOTA. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 428/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 18 ITA NO. 428/JP/2014 SHRI RAM NARAYAN, KOTA.