Sh. Navpreet Singh, Chandigarh V. ITO, Khanna

ITA 568/CHANDI/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4411 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 08-04-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 13-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N D GUPTA
• Keywords: Reopening of assessment; Bonafide belief; Reassessment proceedings; Set aside
• Section: 142(1); 147; 148; 15

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, A, CHANDIGARH . . , , BEFORE SHRI N.K. SAINI, VICE PRESIDENT & SHRI SANJAY GARG , JUDICIAL MEMBER ./ ITA NO.567/CHD/2016 ! / ASSESSMENT YEAR : 2008-09 SH. BALBIR SINGH, S/O SH DHARAM SINGH, THROUGH L/H SH. NAVPREET SINGH, S/O LATE BALBIR SINGH, SUB REGISTRAR, SUB TEHSIL OFFICE BANUR, TEHSIL DERABASSI, DISTT. MOHALI VS. '# THE ITO,WARD-1, KHANNA $% ./ PAN NO:AMGPS6979J $&/ APPELLANT ()$& / RESPONDENT ./ ITA NO.568/CHD/2016 ! / ASSESSMENT YEAR : 2008-09 SH. NAVPREET SINGH, S/O LATE SHRI BALBIR SINGH, HOUSE NO. 1575,SEACTOR 36-D, CHANDIGARH VS. '# THE ITO,WARD-III, KHANNA $% ./ PAN NO:AFTPS4686N $&/ APPELLANT ()$& / RESPONDENT *+,- / ASSESSEE BY : SH. SUDHIR SEHGAL, ADVOCATE ,- / REVENUE BY : SH. N.D.GUPTA, SR.DR . /,+0% / DATE OF HEARING : 08.04.2019 12! ,+0% / DATE OF PRONOUNCEMENT : 13.05.2019 ITA NOS. 657 & 658-C-16- S/SH. BALBIR SINGH & NAVPREET SINGH, MOHALI 2 / ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEALS BY DIFFERENT BUT RELATED ASSESS EES HAVE BEEN PREFERRED AGAINST THE SEPARATE ORDERS DATED 15.2.20 16 OF THE COMMISSIONER OF INCOME TAX (APPEALS)-2, LUDHIANA [ HEREINAFTER REFERRED TO AS CIT(A)']. 2. FIRST, WE SHALL TAKE UP THE ASSESSEES APPEAL IN THE CASE OF SHRI BALBIR SINGH, ITA NO.567/CHD/2016. THIS APPEAL HAS BEEN PREFERRED BY SHRI NAVPREET SINGH LEGAL HEIR OF THE DECEASED S HRI BALBIR SINGH, WHEREIN, FOLLOWING GROUNDS HAVE BEEN TAKEN :- 1. THAT THE LD. CIT{A) HAS ERRED IN CONFIRMING THE ACT ION OF THE ASSESSING OFFICER WITH REGARD TO REOPENING OF THE C ASE U/S 148 AND ALSO ON MERITS. 2. THAT THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE N OTICE U/S 148 WAS LEGALLY VALID AND HAS FAILED TO CONSIDER THE FA CT THAT THE NOTICE U/S 148 HAVING BEEN ISSUED TO THE DEAD PERSO N AND, AS SUCH, THE PROCEEDINGS ARE VOID. 3. NOTWITHSTANDING THE ABOVE GROUND OF APPEAL, THERE W AS NO PROPER AND VALID SERVICE OF NOTICE U/S 148. 4. NOTWITHSTANDING THE ABOVE SAID GROUND OF APPEAL, TH E LD. CIT (A) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSES SING OFFICER IN ITA NOS. 657 & 658-C-16- S/SH. BALBIR SINGH & NAVPREET SINGH, MOHALI 3 ASSESSING THE 50% SHARE OF CAPITAL GAIN AT RS. 76,1 2,500/-. 5. THAT THE CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN ADOPTING THE SALE CONSIDERATIO N ON THE BASIS OF SO CALLED ALLEGED SALE AGREEMENT, WHICH IS NOT RELIABLE AT ALL. 6. THAT THE LD. CIT (A) HAS ERRED IN NOT ADMITTING THE ADDITIONAL GROUND OF APPEAL, WHICH WAS LEGAL GROUND OF APPEAL AND WHICH OUGHT TO HAVE ADMITTED IN VIEW OF THE JUD GMENT OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. NATION AL THERMAL PLANT AS REPORTED IN 229 ITR 383. 7. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DIS POSED OFF. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT AS PER THE INSTRUCTIONS OF HIS CLIENT, HE DOES NOT PRESS GROUND NO. 6. THIS GROUND IS THEREFORE, DISMISSED AS NOT PRESSED. 4. THE FACTS OF THE CASE IN BRIEF ARE THAT IN THIS CASE THE ASSESSMENT WAS REOPENED U/S 147 OF THE INCOME-TAX ACT, 1961 (I N SHORT 'THE ACT') BY WAY OF ISSUANCE OF NOTICE DATED 26.3.2013 U/S 148 OF THE ACT IN THE NAME OF DECEASED ASSESSEE SHRI BALBIR SINGH. HOWEVE R, ADMITTEDLY THE ASSESSEE HAD ALREADY DIED ON 25.11.2012 I.E. MUCH BEFORE THE ISSUANCE OF NOTICE U/S 148 OF THE ACT. EVEN, THE NOTICE U/S 148 OF THE ACT WAS ITA NOS. 657 & 658-C-16- S/SH. BALBIR SINGH & NAVPREET SINGH, MOHALI 4 SERVED THROUGH AFFIXATION AND NOT IN A REGULAR MODE OF SERVICE. THE NOTICE WAS ISSUED IN THE NAME OF THE DECEASED ASSES SEE. THE ISSUE, IN OUR VIEW, IS SQUARELY COVERED BY THE VARIOUS DECISIONS OF THE HON'BLE HIGH COURTS INCLUDING THE LATEST DECISI ON OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF SUMIT BALKRISHNA GUPTA VS. ACIT IN WRIT PETITION NO. 3569 OF 2018 VIDE ORDER DATED 15.2.2019, WHEREIN, THE HON'BLE BOMBAY HIGH COURT HAS HELD THAT THE ISS UE OF A NOTICE UNDER SECTION 148 OF THE ACT IS A FOUNDATION FOR REOPENIN G OF ASSESSMENT. THE SINE QUA NON FOR ACQUIRING JURISDICTION TO REOPEN A N ASSESSMENT IS THAT SUCH NOTICE SHOULD BE ISSUED IN THE NAME OF THE COR RECT PERSON. THIS REQUIREMENT OF ISSUING NOTICE TO A CORRECT PERSON A ND NOT TO A DEAD PERSON IS NOT A MERELY A PROCEDURAL REQUIREMENT BUT IS A CONDITION PRECEDENT TO THE IMPUGNED NOTICE BEING VALID IN LAW . THUS, A NOTICE WHICH HAS BEEN ISSUED IN THE NAME OF THE DEAD PERSO N IS ALSO NOT PROTECTED EITHER BY PROVISIONS OF SECTION 292B OR 2 92BB OF THE ACT. THIS IS SO AS THE REQUIREMENT OF ISSUING A NOTICE I N THE NAME OF CORRECT PERSON IS THE FOUNDATIONAL REQUIREMENT TO ACQUIRE J URISDICTION TO REOPEN THE ASSESSMENT. THE HON'BLE HIGH COURT HAS FURTHER OBSERVED THAT SECTION 148 OF THE ACT REQUIRES THAT BEFORE A PROCE EDING CAN BE TAKEN UP FOR REASSESSMENT, A NOTICE BE SERVED UPON THE ASSES SEE. THE ASSESSEE ON ITA NOS. 657 & 658-C-16- S/SH. BALBIR SINGH & NAVPREET SINGH, MOHALI 5 WHOM THE NOTICE MUST BE SENT MUST BE A LIVING PERSO N I.E LEGAL HEIR OF THE DECEASED ASSESSEE, FOR THE SAME TO BE RESPONDED . THAT THIS IN FACT IS THE INTENT AND PURPOSE OF THE ACT. THEREFORE, SECTI ON 292B OF THE ACT CANNOT BE INVOKED TO CORRECT A FOUNDATIONAL / SUBST ANTIAL ERROR AS IT IS MEANT SO AS TO MEET THE JURISDICTIONAL REQUIREMENT. THEREFORE, BOTH THE IMPUGNED NOTICES AND THE IMPUGNED ASSESSMENT ORDER REQUIRED TO BE QUASHED AND SET ASIDE. SIMILARLY, THE HON'BLE DELHI HIGH COURT IN THE CASE OF RAJENDER KUMAR SEHGAL VS. ITO [2019] 101 TAXMANN.COM 233 (DELHI) HELD THAT WHERE THE NOTICE SEEKING TO REOPEN ASSESSMENT WAS ISSUE D IN THE NAME OF DECEASED ASSESSEE, SINCE SHE COULD NOT HAVE BEEN PA RTICIPATED IN REASSESSMENT PROCEEDINGS, PROVISIONS OF SECTION 292 BB WERE NOT APPLICABLE TO THE ASSESSEES CASE AND AS A CONSEQUE NCE, REASSESSMENT PROCEEDINGS DESERVED TO BE QUASHED. 5. AT THIS STAGE, THE LD. DR HAS POINTED OUT THAT T HE LR OF THE ASSESSEE SHOULD HAVE PROMPTLY COME FORWARD TO APPRI SE THE ASSESSING OFFICER THAT THE ASSESSEE HAD DIED SO THAT NOTICE C OULD HAVE BEEN ISSUED IN THE NAME OF LEGAL REPRESENTATIVE OF THE ASSESSEE . WE DO NOT FIND ANY FORCE IN THE ABOVE CONTENTION OF THE LD. DR. AS NOT ICED ABOVE, THE NOTICE WAS NOT SERVED THROUGH REGISTERED POST / OR BY REGU LAR MODE OF SERVICE. ITA NOS. 657 & 658-C-16- S/SH. BALBIR SINGH & NAVPREET SINGH, MOHALI 6 THE NOTICE IN THIS CASE WAS ALLEGEDLY SERVED THROUG H SUBSTITUTED MODE OF THE SERVICE I.E. BY AFFIXATION OF THE SAME AT THE D OOR OF THE HOUSE OF THE ASSESSEE. FURTHER, THE REPORT OF SERVICE THROUGH A FFIXATION HAVE NOT BEEN WITNESSED BY ANY PERSON . HAD THE INCOME-TAX OFFICIALS ACTUALLY GONE TO THE HOUSE OF THE DECEASED ASSESSEE AND ENQUIRED FRO M THE VILLAGERS ABOUT THE WHEREABOUTS OF THE ASSESSEE FOR THE PURPOSE OF SERVICE OF THE NOTICE, THEY COULD HAVE EASILY COME TO KNOW ABOUT THE DEATH OF THE ORIGINAL ASSESSEE AND WOULD HAVE ACCORDINGLY APPRISED THE AS SESSING OFFICER. 6. IT IS NOT BELIEVABLE THAT THE REVENUE OFFICIALS HAD VISITED THE HOUSE OF THE ASSESSEE AND THEY COULD NOT GET THE INFORMAT ION ABOUT THE DEATH OF THE ASSESSEE DESPITE AFFIXATION OF THE NOTICE WHICH IS ALSO REQUIRED TO BE WITNESSED BY SOME INDEPENDENT / RESPECTABLE OF THE VILLAGE. 7. THE LD. COUNSEL HAS FURTHER INVITED OUR ATTENTIO N TO THE RECEIPT WHICH HAS BEEN PRINTED ON THE BACK OF THE STAMP PAP ERS UPON WHICH THE ALLEGED AGREEMENT TO SELL HAS BEEN EXECUTED, WHEREI N, THE NAME AND ADDRESS OF THE SELLER I.E. SHRI BALBIR SINGH HAS BE EN MENTIONED AS SHRI BALBIR SINGH S/O SHRI DHARAM SINGH 1535/34-D, CHAND IGARH. HOWEVER, THE ALLEGED NOTICE WAS NEVER SERVED BY THE ASSESSIN G OFFICER ON THE SAID ADDRESS DESPITE THE ADDRESS OF THE ASSESSEE DULY ME NTIONED ON THE RECEIPT WHICH WAS THE PART AND PARCEL OF THE ALLEGE D AGREEMENT TO SELL ON ITA NOS. 657 & 658-C-16- S/SH. BALBIR SINGH & NAVPREET SINGH, MOHALI 7 THE BASIS OF WHICH REOPENING OF THE ASSESSMENT HAS BEEN MADE. THIS OTHERWISE SHOW THAT EVEN OTHERWISE THE NOTICE IS NE VER SERVED ON THE ADDRESS AT WHICH THE ASSESSEE ACTUALLY WAS RESIDING BEFORE HIS DEATH. 8. IN VIEW OF THIS, THE ISSUE IS SQUARELY COVERED B Y THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF SUMIT BAL KRISHNA GUPTA VS. ACIT (SUPRA) AND OF THE HONBLE DELHI HIGH COURT IN RAJENDER KUMAR SEHGAL VS. ITO (SUPRA). THE IMPUGNED NOTICE ISSUE U/S 148 OF THE ACT, THEREFORE, IS HELD AS INVALID AND THE CO NSEQUENT ASSESSMENT PROCEEDINGS, ARE, THEREFORE, LIABLE TO BE QUASHED. WE ORDER ACCORDINGLY. IN THE RESULT, THE APPEAL OF THE APPELLANT IS HEREB Y ALLOWED. ITA NO. 568/CHD/2016 9. THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASS ESSEE NAVPREET SINGH AGAINST THE ORDER DATED15.2.2016 OF THE COMMI SSIONER OF INCOME TAX (APPEALS)-2, LUDHIANA. 10. THE ASSESSEE IN THIS APPEAL HAS TAKEN FOLLOWING GROUNDS OF APPEAL:- 1. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACT ION OF THE ASSESSING OFFICER WITH REGARD TO REOPENING OF T HE CASE U/S 148 AND ALSO ON MERITS. 2. THAT THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE N OTICE U/S 148 WAS LEGALLY VALID. ITA NOS. 657 & 658-C-16- S/SH. BALBIR SINGH & NAVPREET SINGH, MOHALI 8 3. NOTWITHSTANDING THE ABOVE SAID GROUND OF APPEAL, TH E LD. CIT (A) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSES SING OFFICER IN ASSESSING THE 50% SHARE OF CAPITAL GAIN AT RS. 76,1 2,500/-. 4. THAT THE CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN ADOPTING THE SALE CONSIDERATI ON ON THE BASIS OF SO CALLED ALLEGED SALE AGREEMENT, WHICH I S NOT RELIABLE AT ALL. 5. THAT THE LD. CIT (A) HAS ERRED IN NOT ADMITTING THE ADDITIONAL GROUND OF APPEAL, WHICH WAS LEGAL GROUND OF APPEAL AND WHICH OUGHT TO HAVE ADMITTED VIEW OF THE JUDGME NT OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS NATIONA L THERMAL PLANT AS REPORTED IN 229 ITR 383. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DIS POSED OFF. 11. THE LD. COUNSEL FOR THE ASSESSEE STATED AT BAR THAT AS PER THE INSTRUCTIONS OF HIS CLIENT, HE DOES NOT PRESS GROUN D NO. 5, THIS GROUND IS, THEREFORE, DISMISSED AS NOT PRESSED. 12. THE ASSESSEE, IN THIS APPEAL, APART FROM CONTE STING THE ADDITIONS MADE BY THE LOWER AUTHORITIES ON MERITS HAS ALSO TA KEN THE LEGAL GROUND REGARDING THE VALIDITY OF THE ASSESSMENT FRAMED U/S 147 OF THE ACT ON THE GROUND THAT THERE WAS NO VALID SERVICE OF MANDATORY NOTICE REQUIRED TO BE ISSUED U/S 148 OF THE ACT. 13. THE FACTS OF THE CASE IN BRIEF ARE THAT IN THI S CASE THE ASSESSMENT WAS REOPENED U/S 147 OF THE INCOME-TAX ACT, 1961 (I N SHORT 'THE ACT') ITA NOS. 657 & 658-C-16- S/SH. BALBIR SINGH & NAVPREET SINGH, MOHALI 9 BY WAY OF ISSUANCE OF NOTICE DATED 26.3.2013 U/S 1 48 OF THE ACT THROUGH REGISTERED POST AS WELL AS BY WAY OF SUBSTITUTED SE RVICE BY AFFIXTURE ON THE SAME DATE I.E. 26.3.2013 14. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSING OFFICER ALLEGEDLY ISSUED THE NOTICE U/S 148 OF THE INCOME TAX ACT AT THE WRONG ADDRESS / OLD ADDRESS FROM WHICH THE ASSESSE E HAD ALREADY LEFT LONG BACK. THAT THE ALLEGED NOTICE U/S 148 OF THE A CT WAS NEVER SERVED UPON THE ASSESSEE. INVITING OUR ATTENTION TO THE IM PUGNED ASSESSMENT ORDER FRAMED BY THE ASSESSING OFFICER, THE LD. COUN SEL HAS SUBMITTED THAT AS PER THE ASSESSMENT ORDER THE ASSESSING OFFI CER ISSUED THE ALLEGED NOTICE U/S 148 OF THE ACT THROUGH NORMAL MODE OF SE RVICE I.E BY REGISTERED POST AS WELL AS ALLEGEDLY SERVED THE NOT ICE THROUGH SUBSTITUTED MODE OF SERVICE I.E BYWAY OF AFFIXATION, ON THE SAM E DATE I.E. 26.3.2013. HE, THEREFORE, HAS SUBMITTED THAT IF THE ASSESSING OFFICER WAS UNDER BONAFIDE BELIEF THAT THE ASSESSEE WAS RESIDING AT T HE ADDRESS AT WHICH NOTICE WAS ISSUED I.E. VILLAGE BHATIAN TEHSIL KHANN A AND THE NOTICE WAS ISSUED IN THE NORMAL COURSE AT THE LAST ADDRESS TH ROUGH REGISTERED POST THEN WHAT PROMPTED THE ASSESSING OFFICER TO SIMULTA NEOUSLY EFFECT THE SERVICE THROUGH SUBSTITUTED MODE I.E. BY WAY OF AFF IXATION ON THE SAME DATE. HE IN THIS RESPECT HAS SUBMITTED THAT PERHAPS THE ASSESSING OFFICER ITA NOS. 657 & 658-C-16- S/SH. BALBIR SINGH & NAVPREET SINGH, MOHALI 10 WAS ALREADY AWARE THAT THE ASSESSEE WAS NOT RESIDIN G AT THE SAID ADDRESS. THE LD. COUNSEL, FURTHER INVITING OUR ATTENTION TO THE AFFIXTURE REPORT OF THE NOTICE, HAS SUBMITTED THAT THE SAID AFFIXTUR E REPORT HAS NOT BEEN SIGNED BY ANY INDEPENDENT WITNESS IN WHOSE PRESENCE THE ALLEGED AFFIXTURE WAS DONE AT THE HOUSE OF THE ASSESSEE. TH E LD. COUNSEL HAS FURTHER SUBMITTED THAT THE FATHER OF THE ASSESSEE N AMELY SHRI BALBIR SINGH HAD ALREADY DIED WHEREAS THE ASSESSEE HAD ALR EADY LEFT THE SAID ADDRESS LONG BACK. HAD THE OFFICIALS OF THE DEPARTM ENT HAD GONE TO THE HOUSE OF THE ASSESSEE AND ENQUIRED ABOUT THE ASSESS EE, THEY COULD HAVE EASILY COME TO KNOW NOT ONLY ABOUT THE DEATH OF THE FATHER OF THE ASSESSEE SHRI BALBIR SINGH BUT ALSO THE FACT THAT T HE ASSESSEE WAS NOT RESIDING THERE. THE LD. COUNSEL HAS FURTHER SUBMITTED THAT THE OLD ADDRESS OF VILLAGE BHATTIAN, TEHSIL KHANNA AT WHICH THE NOTIC E WAS ALLEGEDLY SERVED / SENT TO THE ASSESSEE HAS NOT BEEN MENTION ED IN THE AGREEMENT TO SELL IN QUESTION. THOUGH IN THE FRONT PART OF THE A GREEMENT, THE ADDRESS OF HIS DECEASED FATHER SHRI BALBIR SINGH HAS BEEN M ENTIONED AS H. NO. 2208C, PHASE-7, SAS NAGAR, MOHALI, HOWEVER, SINCE T HE SAID HOUSE ITSELF WAS THE SUBJECT MATTER OF SALE, THE ASSESSIN G OFFICER SERVED THE ALLEGED NOTICE / LETTER AT THE OLD ADDRESS / VILLA GE ADDRESS OF THE ASSESSEE ITA NOS. 657 & 658-C-16- S/SH. BALBIR SINGH & NAVPREET SINGH, MOHALI 11 AT VILLAGE BHATTIAN, TEHSIL KHANNA. HOWEVER, THE OT HER ADDRESS OF THE ASSESSEE AND HIS FATHER WAS AVAILABLE IN THE AGREEM ENT TO SELL ITSELF I.EON THE RECEIPT PRINTED ON THE BACK SIDE OF THE STAMP P APER AT WHICH THE ASSESSING OFFICER NEVER SERVED NOTICE U/S 148 OF TH E ACT. THE LD. COUNSEL HAS INVITED OUR ATTENTION TO THE RE CEIPT WHICH HAS BEEN PRINTED ON THE BACK OF THE STAMP PAPERS UPON WHICH THE ALLEGED AGREEMENT TO SELL HAS BEEN EXECUTED, WHEREIN, THE N AME AND ADDRESS OF THE SELLER I.E. SHRI BALBIR SINGH, THE DECEASED FAT HER OF THE ASSESSEE, HAS BEEN MENTIONED AS SHRI BALBIR SINGH S/O SHRI DHARAM SINGH 1535/34-D, CHANDIGARH. HOWEVER, THE ALLEGED NOTICE WAS NEVER S ERVED BY THE ASSESSING OFFICER ON THE SAID ADDRESS DESPITE THE A DDRESS OF THE ASSESSEE DULY MENTIONED ON THE RECEIPT WHICH WAS THE PART AN D PARCEL OF THE ALLEGED AGREEMENT TO SELL ON THE BASIS OF WHICH REO PENING OF THE ASSESSMENT HAS BEEN MADE. THAT THE NOTICE WAS NEVE R SERVED ON THE ADDRESS AT WHICH THE ASSESSEE ACTUALLY WAS RESIDIN G AT THAT TIME. 15. SO FAR AS THE VALIDITY OF SERVICE THROUGH AFFIX TURE IS CONCERNED, A COPY OF THE LETTER / AFFIXTURE ORDER HAS BEEN PLAC ED AT PAGE 4 OF THE PAPER BOOK, THE CONTENTS OF WHICH ARE REPRODUCED AS UNDER:- ITA NOS. 657 & 658-C-16- S/SH. BALBIR SINGH & NAVPREET SINGH, MOHALI 12 AFFIXTURE ORDER I, SWARAN SINGH, INCOME TAX OFFICER , WARD-III, KHANNA, AM SATISFIED THAT THE NOTICE U/S 148 OF THE I.T. ACT, 1961 ISSUED IN THE CASE OF SH. NAVPREET SINGH S/O SH. BALBIR SINGH, VILL. BHATTIAN, KHANNA CANNOT BE SERVED IN AN ORDINARY WAY. I, THEREFORE, DIRECT SH. PARAM VIR SINGH DUGGAL, INCOME TAX INSPECTOR OF THIS OFFICE TO EFFECT SERVICE OF THE SAID NOTICE BY AFFIXTURE UNDER ORDER V RULE 20 OF CPC, 1908 ON THE CONSPICUOUS PART OF PALACE WHERE T HE ASSESSEE IS KNOWN TO HAVE LAST RESIDED OR CARRIED O N HIS BUSINESS OR PERSONALLY WORKED FOR GAIN. SD/- DATED 26.3.2013 (SWARAN SINGH) INCOME TAX OFFICER, WARD-III,KHANNA A COPY OF THIS ORDER SHOULD BE PALCED ON THE NOTIC E BOARD OF THIS OFFICE. SD/- (SWARAN SINGH) INCOME TAX OFFICER, WARD-III,KHANNA ATTESTED BY ME SD/- P V DUGGAL 26.3.2013 IMP. SD/- MANGAT RAM ITA NOS. 657 & 658-C-16- S/SH. BALBIR SINGH & NAVPREET SINGH, MOHALI 13 16. A PERUSAL OF THE ABOVE AFFIXTURE ORDER REVEALS THAT SHRI SWARAN SINGH, ITO, WARD-III, KHANNA DIRECTED SHRI PAMAMVIR SINGH DUGGAL, INCOME TAX INSPECTOR TO EFFECT THE SERVICE OF THE N OTICE U/S 148 OF THE ACT BY WAY OF AFFIXTURE UNDER ORDER V RULE 20OF CPC , 1908 ON THE CONSPICUOUS PART OF PLACE WHERE THE ASSESSEE IS KN OWN TO HAVE LAST RESIDED OR CARRIED ON HIS BUSINESS OR PERSONALLY WO RKED FOR GAIN. HOWEVER, NO ADDRESS OF SUCH PLACE HAS BEEN MENTIONE D IN THE SAID AFFIXTURE ORDER. IT IS NOT CLEAR FROM WHERE THE INC OME TAX INSPECTOR WOULD COME TO KNOW ABOUT THE LAST KNOWN ADDRESS OF THE ASSESSEE EITHER OF HIS RESIDENCE OR OF HIS WORKING PLACE. EVEN IN T HE REPORT OF THE INSPECTOR OF THE SAME DATE I.E. 26.3.2013, HE HAS S IMPLY WRITTEN AFFIXED BY ME. EVEN HE HAS NOT MENTIONED AS TO WHERE HE HA D GONE TO AFFIX THE NOTICE, TO SAY WHETHER IT WAS AFFIXED AT THE LAST K NOWN RESIDENTIAL ADDRESS OF THE ASSESSEE OR AT THE LAST KNOWN WORK P LACE OF THE ASSESSEE. THOUGH THE SIGNATURE OF ONE SHRI MANGAT RAM HAVE AL SO BEEN APPENDED BUT WHO THAT MANGAT RAM IS/WAS, HAS NOT BEEN MENTIO NED; WHETHER HE WAS AN INDEPENDENT WITNESS AVAILABLE AT THE PLACE W HERE THE AFFIXATION WAS DONE OR WAS AN EMPLOYEE OF THE INCOME TAX OFFIC E, IS NOT COMING OUT. EVEN AS MENTIONED ABOVE, THE NOTICE BY REGISTE RED POST AS WELL AS BY WAY OF SUBSTITUTED SERVICE WAS ALLEGEDLY SERVED ON THE SAME DATE. ITA NOS. 657 & 658-C-16- S/SH. BALBIR SINGH & NAVPREET SINGH, MOHALI 14 UNDER THE CIRCUMSTANCES, THERE WAS NO REASON FOR TH E SATISFACTION OF THE ASSESSING OFFICER THAT THE ALLEGED NOTICE CANNOT BE SERVED IN AN ORDINARY WAY. THE ASSESSING OFFICER ISSUED THE AFFIXTURE ORD ER ON THE SAME DAY WITHOUT WAITING FOR THE OUTCOME OF THE SERVICE OF N OTICE SENT THROUGH ORDINARY WAY I.E. BY WAY OF REGISTERED POST. 17. A PERUSAL OF THE ASSESSMENT ORDER FURTHER REVEA LS THAT WHEN THE SERVICE COULD NOT BE EFFECTED AT THE VILLAGE ADDRES S OF THE ASSESSEE, THE ASSESSING OFFICER THEREAFTER SERVED THE NOTICE U/S 142(1) OF THE ACT AT HIS OFFICE ADDRESS WHICH MEANS THAT THE ASSESSING O FFICER HAD COME TO KNOW THE OFFICE ADDRESS OF THE ASSESSEE AT WHICH SE RVICE CAN BE EFFECTED BUT ADMITTEDLY NO NOTICE U/S 148 OF THE ACT WAS SER VED ON THE ASSESSEE AT HIS OFFICE ADDRESS ALSO. UNDER THE CIRCUMSTANCE S, IT IS CLEAR THAT THERE WAS NO VALID SERVICE OF NOTICE U/S 148 OF THE ACT ON THE ASSESSEE. 18. THE ISSUE, THEREFORE, IS SQUARELY COVERED BY TH E RECENT DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF SUMI T BALKRISHNA GUPTA VS. ACIT (SUPRA) IN WRIT PETITION NO. 3569 OF 2018 VIDE ORDER DATED 15.2.2019, WHEREIN, THE HON'BLE BOMBAY HIGH COURT H AS HELD THAT THE ISSUE OF A NOTICE UNDER SECTION 148 OF THE ACT IS A FOUNDATION FOR REOPENING OF ASSESSMENT AND CONDITION PRECEDENT FOR FRAMING OF THE ITA NOS. 657 & 658-C-16- S/SH. BALBIR SINGH & NAVPREET SINGH, MOHALI 15 ASSESSMENT U/S 147 OF THE INCOME TAX ACT. SINCE THE RE WAS NO VALID SERVICE OF THE NOTICE U/S 148 OF THE ACT, THEREFOR E, THE CONSEQUENT ASSESSMENT PROCEEDINGS FRAMED U/S 147 OF THE ACT AR E NOT SUSTAINABLE IN THE EYES OF LAW AND THE SAME ARE ACCORDINGLY QUASHE D. THE APPEAL OF THE ASSESSEE IS HEREBY ALLOWED. 19. IN THE RESULT, BOTH THE CAPTIONED APPEALS ARE H EREBY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13/05/2019 SD/- SD/- ( . . / N.K. SAINI) ( ! / SANJAY GARG) '#$ / VICE PRESIDENT %& / JUDICIAL MEMBER DATED : 13. 05.2019 .. 3,(+45 65!+ / COPY OF THE ORDER FORWARDED TO : 1. $& / THE APPELLANT 2. ()$& / THE RESPONDENT 3. . 7+ / CIT 4. . 7+ ( )/ THE CIT(A) 5. 58(+9 , 09 , :;<= / DR, ITAT, CHANDIGARH 6. <>/ / GUARD FILE 3 . / BY ORDER, ? / ASSISTANT REGISTRAR