Appeal Details
Counselvise Citation
[2024] 100 COUNSELVISE.COM (IT) 1800 (ITAT-JAIPUR)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
6 month(s) 20 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
04-06-2024
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
SMC
Next Hearing Date
16-04-2024
Assessment Year
2009-2010
Appeal Filed On
15-11-2023
Judgement Text
vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, vk;dj vihy la-@ITA No. 687/JP/2023 fu/kZkj.k o"kZ@Assessment Years : 2009-10 Mohammed Sabir Babubhai Shaikh Indian Star Radiators Opp Maruti Complex, Opp Maruti Complex Saijpur, Ahmedabad cuke Vs. ITO, Ward 6(1), Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: BBFPS 4713 P vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Rohan Sogani jktLo dh vksj ls@ Revenue by : Smt. Monisha Chaudhary, Addl. CIT (V. C) lquokbZ dh rkjh[k@ Date of Hearing : 14/05/2024 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 05/06/2024 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal filed by assessee is arising out of the order of the National Faceless Appeal Centre, Delhi dated 26/09/2023 [here in after ld. NFAC ] for assessment year 2009-10 which in turn arise from the order dated 15.11.2016 passed under section 147 r.w.s. 144 of the Income Tax Act, by ITO, Ward-6(1), Jaipur. 2 ITA No. 687/JP/2023 Mohammed Sabir Babubhai Shaikh vs. ITO 2. In this appeal, the assessee has raised following grounds: - “1. In The facts and circumstances of the case and in law, ld. CIT(A)/NFAC has erred in completing the proceedings without considering the responses of the assessee and also withiut affording adequate opportunity to the assessee. The action of the ld. CIT(A)/NFAC is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the entire proceedings being against the principles of natural justice. 2. In The facts and circumstances of the case and in law, Id. CIT(A)/NFAC has erred in confirming the action of the ld. AO in making addition of Rs 18,50,000 on account of long term capital gains on sale of immovable property. The action of the ld. CIT(A)/NFAC is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by deleting such entire addition of Rs 18,50,000. 3. In The facts and circumstances of the case and in law, ld. CIT(A) /NFAC has erred in confirming the action of the ld. AO in not allowing the benefit of cost of acquisition, incidental expenses and cost of improvement to the assessee. The action of the ld. CIT(A) /NFAC is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by allowing such costs to the assessee by working LTCG as per the law. 4. The assessee craves his rights to add, amend or alter any of the grounds on or before the hearing.” 2.1 The ld. AR for the assessee draw our attention to an application made under rule 11 of Appellate Tribunal Rules, 1963, wherein the assessee has raised an additional ground of appeal. The addition ground so raised reads as under :- "In the facts and circumstances of the case, and in law, Id. AO has erred in reopening the case of assessee under Section 147, and thereafter making additions, whereas the fact remains that the notice under Section 148, as was issued by the Id. AO, in accordance with law, was after six years from the end of 3 ITA No. 687/JP/2023 Mohammed Sabir Babubhai Shaikh vs. ITO the relevant assessment year, and thus was barred by limitation. The action of the Id. AO is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the entire reassessment proceedings as initiated by the Id. AO having been barred by limitation and hence illegal and void-ab initio." To support the ground, the ld. AR of the assessee submitted that the above ground so raised is purely legal in nature. The factual position in relation to the notice having been issued by ld. AO on 18.03.2016 at the wrong address of assessee and thereafter on 20.07.2016 on the correct address of assessee is clear from the records. Such factual position has also been accepted by the ld. AO in the remand report as submitted in the proceeding before the ld. CIT(A)-2 in the first appellate proceedings. The ld. AR for the assessee, therefore, submitted to consider the additional ground. 3. The ld. DR submitted that this ground has not arisen from the order of the ld. CIT(A) and it is taken for the first time. Therefore, the same cannot be raised at this stage by the assessee. 4. We have heard the parties, perused the records. The bench noted that the additional ground raised deals with the facts already on record and therefore, considering the factual position as cited hereinabove, the grounds raised by the assessee being technical and legal in nature same is 4 ITA No. 687/JP/2023 Mohammed Sabir Babubhai Shaikh vs. ITO admitted for adjudication. We get support of our view from the decision of the Hon’ble Apex Court in the case of NTPC Ltd. [1998] 229 ITR 383 (SC). 5. Succinctly, the fact as culled out from the records is that the assessee has not filed any return of income for assessment year 2009-10. The case of the assessee was reopened u/s 147 of I.T. Act, 1961. Notice u/s 148 was issued to the assessee on 14.03.2016 requiring assessee to deliver a return of Income in the prescribed format within thirty days from the date of service of the notice. The assessee failed to make compliance of the notice. Notice U/s. 142(1) was issued on 08.09.2016, however, compliance of the notice could not be made. As the case is time barring one and going to be barred by limitation on 31.12.2016, therefore, a show cause notice U/s 144(1)(a) along with notice U/s.142(1) was issued to the assessee on 4.11.2016 asking him to file certain information on 09.11.2016, failing which the assessment completed on the basis of information available on record. In the prevailing circumstances the ld. AO has not alternative but to proceed to complete the assessment exparte u/s 144 of the I.T. Act, 1961. As per information with the ld. AO the assessee sold an immovable property situated at H-614, Sitapura Industrial Area (EPIP), Tonk Road, Jaipur on 19.06.2008 for a consideration of Rs. 5 ITA No. 687/JP/2023 Mohammed Sabir Babubhai Shaikh vs. ITO 13,90,242/-. The value of the property was adopted at Rs.18,50,000/- by the sub–Registrar V, Jaipur. The assessee has not submitted any documentary evidence regarding cost of acquisition of the property therefore the cost of acquisition is taken as Rs. NIL and accordingly capital gain calculated. 6. Aggrieved from the order of the assessing officer, the assessee preferred an appeal before the ld. CIT(A). Apropos to the grounds so raised the relevant finding of the ld. CIT(A) is reiterated here in below: “6.1 I have carefully considered the facts and evidences on record. The appellant has not complied with the notices issued during the appeal proceedings. I find that the appellant has not be able to submit any documentary evidence regarding cost of acquisition of the property before the AO as well as in the appeal proceedings. In the absence of any documents regarding the date and year of acquisition and purchase price of property, the cost of acquisition is not known. The appellant has also not substantiated or explained the difference in the sale price and the stamp value also. In view of any evidences submitted to the contrary by the appellant that action of the AO in taking the cost of acquisition as nil and added Rs 18,50,000 as long term capital gain is not correct, the addition made by the AO sustained. The appeal on these grounds are treated as dismissed. 7. Ground No 3 is directed against the AO charging interest u/s234A, B & 234C. Interest under section 234A, B & 234C of the Act are consequential in nature. The appeal on these grounds are dismissed. 8. Ground No 4 is general in nature and needs no adjudication. 9. Conclusion: In the result appeal of the appellant is dismissed.” 6 ITA No. 687/JP/2023 Mohammed Sabir Babubhai Shaikh vs. ITO 7. Since ld. CIT(A) has dismissed, the appeal of the assessee, the assessee has preferred the present appeal on the ground as stated hereinabove. The ld. AR of the assessee first prayed to decide and consider the arguments on the additional ground raised and then if required on merits of the cash. To support the contentions so raised the ld. AR of the assessee filed a details written submission and the same is reproduced herein below:- I. Assessee, an individual, filed his original return of income on 17.03.2011, at a total income of Rs. 1,84,570. During the year under consideration, assessee sold an immovable property, situated at P.No. H-164, Sitapura Industrial Area, Tonk Road, Jaipur (“the property”) for total consideration of Rs. 18,50,000. II. The property had been purchased by assessee, during the previous year 2000-01 for total consideration of Rs. 6,90,000. Subsequent to the purchase of the property, assessee had incurred “cost of improvement” amounting to Rs. 7,09,305 on the property. III. Accordingly, there was no capital gain on sale of the property, considering the Indexed Cost of Acquisition and Improvement. Working in this regard is as under- [PB : 6] S.No. Particulars Amount (In Rs.) (A) Sale Consideration as per Sale Deed 18,50,000 Less: (B) Cost of Acquisition (F.Y. 2000-01) (7,05,000/406*582) 10,10,616 Cost of Improvement (F.Y. 2002-03) (5,08,710/447*582) 6,62,347 Cost of Improvement (F.Y. 2004-05) (2,00,595/480*582) 2,43,221 19,16,184 Long Term Capital Loss (A-B) 66,184 7 ITA No. 687/JP/2023 Mohammed Sabir Babubhai Shaikh vs. ITO IV. Thereafter, “information” was received by the Income Tax Department of assessee, having sold the property for Rs. 13,90,242, whereas the DLC/ Market Value of the property was Rs. 18,50,000. This information considered by ld. AO was factually incorrect. The assessee had actually sold the property for Rs. 18,50,000 and not at Rs. 13,90,242 considered by ld. AO. This factual position was accepted by ld. AO in the remand proceedings, discussed infra. [PB:5-6] V. Based on such information, ld. AO reopened the case of assessee by issuance of notice, on 18.03.2016, under Section 148. The address as mentioned in the said notice was “168/1032, Arab Masjid Morarji Chowk, Bapu Nagar, Jaipur”. Whereas, the correct address of the assessee was “168/1032, Arab Masjid Morarji Chowk, Bapu Nagar, Ahemdabad-380024”. [PB: 7-8] VI. Thus, the notice as originally issued assessee on 18.03.2016 [PB :8] was on the incorrect address , with the city being wrongly mentioned as Jaipur, instead of Ahmedabad. As a result, the notice dated 18.03.2016 was not served upon the assessee. VII. Thereafter, on 20.07.2016, ld. AO again issued notice to assessee under Section 148 [PB: 7], for the captioned assessment year. The subsequent notice was issued on the correct address, i.e. 168/1032, Arab Masjid Morarji Chowk, Bapu Nagar, Ahemdabad-380024, wherein the city was correctly mentioned as Ahmedabad, instead of Jaipur. VIII. Since the notices had not been served on assessee, assessee could not reply during the course of reassessment proceedings. As a result, the order was passed by ld. AO in the reassessment proceedings by considering the entire amount of Rs. 18,50,000, being the DLC/Market Value of the property, as the income of assessee. IX. Ld. AO did not provide any deduction of the cost of acquisition and improvement of the property. Accordingly, order dated 15.11.2016, in the reassessment proceedings, was passed under Section 147/144 was making addition of Rs. 18,50,000. X. Against such additions made, assessee preferred appeal before the ld. CIT(A)-2, Jaipur. The said appeal was filed physically by the assessee before the ld. CIT(A)-2, Jaipur. The appeal of the assessee was thereafter transferred from ld. CIT(A)-2, Jaipur to ld. CIT(A)-2, Udaipur. XI. Subsequently, notices were issued to the assessee by the office of ld. CIT(A) for fixation of the captioned appeal physically. The Authorised Representative (“AR”) of the assessee, appeared before the ld. CIT(A). The AR of assessee, before ld. CIT(A) made the submissions as regards the transaction undertaken by assessee. Assessee submitted evidences in relation to the cost of 8 ITA No. 687/JP/2023 Mohammed Sabir Babubhai Shaikh vs. ITO acquisition and the cost of improvement as part of Additional Evidences, in the first appellate proceedings. [PB:12] XII. Additional evidence, as submitted by assessee, during the first appellate proceedings physically before ld. CIT(A) were thereafter sent by ld. CIT(A) to the Jurisdictional Assessing Officer seeking Remand Report. Subsequently, Remand Report was issued by the ld. AO. In such Remand Report, it was categorically accepted by the ld. AO, of him having issued two notices to the assessee under Section 148. The first notice was issued on 18.03.2016, which was on the wrong address. Thereafter, the second notice was issued on the correct address on 20.07.2016. [PB:5] XIII. In the Remand Report, ld. AO also confirmed the verification of the Additional Evidences, submitted by assessee in the First Appellate Proceedings, which inter alia included, Agreement of land purchase in relation to cost of acquisition, Receipts of work done on the property in relation to Cost of Improvement, etc. Ld. AO did not provide any adverse comment on any of the documents forming part of Additional Evidences, before ld. CIT(A). Ld. AO was only of the view that such Additional Evidences should not be accepted by ld. CIT(A).[PB:6] XIV. Thereafter, the case of assessee in the First Appellate Proceedings, was transferred to the National Faceless Appeal Centre (“NFAC”). Subsequently, notices were issued by the NFAC. Those notices were served online to the assessee. However, those were not replied by assessee as the assessee was under bonafide belief that all the submissions in relation to the captioned appeal had been already filed by him physically before the ld. CIT(A)-2, Udaipur. Accordingly, assessee was of the view that no further submissions were required to be filed by him in the first appellate proceedings. XV. NFAC did not consider the submissions having already filed by assessee in the first appellate proceedings. Also the Remand Report of the ld. AO was not considered by the NFAC. Thereafter, NFAC on 15.11.2016, passed the order in the case of assessee, under Section 250 without considering the submissions already on record. In order passed by NFAC, the additions made by ld. AO, during the course of reassessment proceedings, were upheld by the NFAC. Against such order passed by the NFAC, the present appeal has been preferred by the assessee, before the Hon’ble Bench. ADDITIONAL GROUND NO 1: NOTICE UNDER SECTION 148 BARRED BY LIMITATION 1. SUBMISSION 9 ITA No. 687/JP/2023 Mohammed Sabir Babubhai Shaikh vs. ITO 1.1. It is submitted that notice under Section 148 was issued to assessee on 18.03.2016. As stated above, the notice was issued on the wrong address and never served on the assessee. Thereafter on 20.07.2016, the notice was issued to assessee at his correct address. 1.2. The fact is undisputed by the lower authorities and has also been categorically accepted by ld. AO in the Remand Report submitted by him to the ld. CIT(A)-2, Udaipur, in the first proceedings physically. [PB:5] 1.3. Accordingly, in the present case, the correct notice as has been issued under Section 148, to the assessee, was issued on 20.07.2016. 1.4. The present case pertains to A.Y. 2009-10. As per Section 149, as it stood for the year under consideration, the last date for issuance of notice under Section 148 in the case of assessee was six years from the end of the relevant assessment year. Section 149, at it stood for the period under consideration is as under: - 149. 64 [(1) No notice under section 148 shall be issued 65 for the relevant assessment year,— 66 [(a) if four years have elapsed from the end of the relevant assessment year, unless the case falls under clause (b); (b) if four years, but not more than six years, have elapsed from the end of the relevant assessment year unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to one lakh rupees or more 66a for that year.] [Emphasis Supplied] 10 ITA No. 687/JP/2023 Mohammed Sabir Babubhai Shaikh vs. ITO 1.5. Six years from the end of the relevant assessment year, in the present case expired on 31.03.2016. Accordingly, the ld. AO was required to issue notice to assessee under Section 148, on the correct address, on or before 31.03.2016. 1.6. However, the present notice has been issued by the ld. AO, on the correct address on 20.07.2016. The previous notice issued by ld. AO on the assessee, on 18.03.2016 was not on the correct address and accordingly should not be considered to be a valid notice. Notice issued on 20.07.2016 is barred by limitation as having been issued beyond the period of six years from the end of the relevant assessment year. 1.7. Under identical set of facts, when the notices were issued within the time limit prescribed under Section 149, on the wrong address of assessee, the notices were quashed considering them to be illegal and void-ab-initio. In this regard, attention is drawn towards the below mentioned judicial pronouncements, the extracts of which have also been set out here under for the sake of ready reference. 1.7.i Dr. Ajay Prakash [2014] 226 Taxman 71 (Allahabad) [CLC- 1-3] Where Assessing Officer issued notice seeking to reopen assessment on wrong address and person alleged to be an employee of assessee was not authorized to receive notice, presumption of service of notice under section 292BB would not be attracted and, therefore, impugned additions made in reassessment proceedings deserved to be set aside 1.7.ii Om Parkash Kukreja [2016] 159 ITD 190 (Chandigarh - Trib.) [CLC- 4-12] “...Head Notes : Section 148 of the Income-tax Act, 1961 - Income escaping assessment - Issue of notice for (Service of notice) - Assessment year 2006-07 - Whether service of notice under section 148 is condition precedent to validity of any re-assessment made under section 148 - Held, yes - Whether where assessee was not residing at address, as given in notice under section 148, there was no question of any valid service through a ffixture of said notice at that address and reassessment proceedings initiated by Assessing Officer in pursuance of such notice would be invalid and bad in law - Held, yes [Para 13] [In favour of assessee] 1.8. Where no notice under Section 148 having been served on the assessee prior to re-opening of assessment, assessment made under Section 147 was held to be bad in law; argument based on Section 292BB was not sustainable on the facts of the case. [Mani Kakkar (2009) 18 DTR 145 (Delhi)(Trib.)] Mani Kakar [2009] 178 Taxman 315 (Delhi) [CLC- 13-14]. 1.9. The notice prescribed by Section 148 cannot be regarded as a mere procedural requirement. It is only if the said notice is served on the assessee that the AO would be justified in taking proceedings against the assessee. If no notice is issued or if the notice issued is shown to be invalid, then the proceedings 11 ITA No. 687/JP/2023 Mohammed Sabir Babubhai Shaikh vs. ITO taken by the ITO would be illegal and void. [Y. Narayan Chetty v. ITO (1959) 35 ITR 388 (SC)] [CLC- 15-26] 1.10. The fact that the order passed by ld AO in the reassessment proceedings and thereafter by the NFAC in the first appellate proceedings ex parte would not have any bearing on deciding the issue of notice being illegal by the Hon’ble Bench. This is for the reason that the said issue is a legal issue, which can be raked up before the Hon’ble ITAT. [National Thermal Power Co. Ltd. [1998] 229 ITR 383 (SC)] In view of the above, the present reassessment proceedings are barred by limitation and accordingly, the order itself is illegal, void and having been passed without the authority of law. Thus, the present order deserves to be quashed. GROUND NO 1 NFAC ERRED IN PASSING THE ORDER WITHOUT CONSIDERING THE RESPONSES OF ASSESSEE 1. SUBMISSION 1.1. In the present case, NFAC passed order ex parte against assessee, without considering the submission/documents already forming part of the of the record, which inter alia include the submissions of assessee in relation to the Additional Evidence, Remand Report of the ld. AO. In view of the above, order passed by the NFAC is illegal and void-ab-initio and deserves to be quashed GROUND NO 2-3 NFAC ERRED IN NOT ALLOWING THE BENEFIT OF COST OF ACQUISITION, INCIDENTAL EXPENSES AND COST OF IMPROVEMENT 1. SUBMISSION 1.1. As stated above, the property was sold by assessee for consideration of Rs. 18,50,000. The said value was also the DLC/Market Value of the property. 1.2. The lower authorities made the addition of the entire amount of Rs. 18,50,000 to the income of assessee. None of the lower authority considered the cost of acquisition of the property. 1.3. Both authorities were duty bound to consider the cost of acquisition of the property, for the reason that if the property has been sold, there is always some cost of acquisition which is associated with the property. 12 ITA No. 687/JP/2023 Mohammed Sabir Babubhai Shaikh vs. ITO 1.4. Ld. AO being a quasi-judicial officer and NFAC having co-terminus power with that of the ld. AO, should have considered this aspect and should not have just added the entire amount of such income to in the hands of the assessee. 1.5. Details as regards the “cost of acquisition” and “improvement” was submitted by the assessee in the First Appellate Proceedings which should have been considered by ld. CIT(A). Not considering evidences on record has caused grave hardship to assessee. 1.6. If the cost of acquisition and cost of improvement of the property is considered for the purpose of calculating the Capital Gains, if any, such capital gain would be zero. On the contrary, there would be Capital Loss of Rs. 66,184 which would be calculated for the transaction undertaken by assessee. Working in this regard has already been given at point IV above, which will please be considered. 1.7. Considering the factual position already on record, the case may please be not set aside. Setting aside the case would gravely prejudice the cause of the assessee and will justify the illegality of action of ld. CIT(A). In fact, the remand report is complete and self-speaking and fully supports the case of the assessee which needs to be considered by Hon’ble Bench for deciding the case. In view of the above, additions made by the ld. AO and confirmed by the NFAC deserves to be deleted in to-to.” 8. To support the contention so raised in the written submission reliance was placed on the following evidence / records / decisions: S. No. Particulars Page No. 1 Copy of notice by CIT(A) for calling of remand report by Assessing Officer 1-2 2 Copy of Remand Report for A.Y 2009-10 of Assessing Officer 3-10 3 Copy of submission by the assessee on the Remand Report issued by Assessing Officer 11-14 Compilation of case laws S. No. Case Name Page No. 1 Copy of order in the case of Dr. Ajay Prakash [2014] 226 1-3 2 Copy of order in the case of Om Parkash Kukreja [2016] 159 ITD 190 (Chandigarh-Trib.) 4-12 3 Copy of order in the case of [Mani Kakkar (2009) 18 DTR 145 (Delhi)(Trib.) Mani Kakar [2009] 178 Taxman 315 (Delhi) 13-14 4 Copy of order in the case of Y. Narayan Chetty v. ITO (1959) 35 ITR 388 (SC)] 15-26 13 ITA No. 687/JP/2023 Mohammed Sabir Babubhai Shaikh vs. ITO 5 Copy of order in the case of National Thermal Power Co. Ltd [1988] 229 ITR 383 (SC) 27-31 9. The ld. AR of the assessee invited our attention to the paper book filed on 22.12.2023 page no. 1 wherein the ld. CIT(A) called for the remand report on the issue of notice u/s. 148 of the Act. The relevant direction of the ld. CIT(A) to ld. AO reads as under “4. The appellant has submitted written submission, which is forwarded to you. The appellant contended that notice u/s 148 has been issued by the ld. AO on 14.03.2016 but this notice has not been served upon the assessee. The appellant further urged that the AO has not supplied the copies of reasons recorded u/s 148 to the assessee as the assessee was applied for the same. In absence of which he could not get an opportunity to file its objection. Therefore, you are requested to submit the valid proof of notice alongwith the reason recorded for reopening of the case u/s 148 to the undersigned.” In response the relevant reply filed by the ld. AO upon which the emphasis was supplied by the ld. AR of the assessee reads ; “Kindly refer to your office letter no. 1555 dt. 27.08.2018 vide which remand report has been called for. Desired report is submitted as under:- 1. The assessee has contended that notice u/s 148 dt. 14.03.2016 had never been served on the assessee. This contention is not correct. It is true that initially notice u/s 148 was sent by registered post but in the address, city was wrongly mentioned as Jaipur in place of Ahemedad. This notice was received back un-served from special postal authorities. However, later on, copy of notice u/s 148 was sent to assessee at Ahemedabad address alongwith letter no. 1085 dt. 20.07.2016 (copy enclosed), this letter was sent vide speed post. Thus the notice u/s 148 was validly served on the assessee.” 14 ITA No. 687/JP/2023 Mohammed Sabir Babubhai Shaikh vs. ITO The ld. AR of the assessee based on these aspect of the matter submitted that the alleged notice dated 14.03.2016 was never served to the assessee and the notice dated 20.07.2016 is beyond the time for which no notice u/s. 148 can be issued. Based on these set of facts and relying on the decision of Ardent Stell Ltd. Vs. ACIT-Central-2, Raiput [ 94 taxmann.com 95 (Chhattisgar) ] the assessment order is required to be quashed. 10. The ld DR is heard who relied on the findings of the lower authorities and more particularly advanced the similar contentions as stated in the order of the ld. AO and ld. CIT(A). At the same time on the legal ground so raised she vehemently argued that the ground for service of notice has not been raised by the assessee before the lower authority the same cannot be taken up at this stage and at the same time she did not controvert the finding recorded by the ld. AO in the remand report submitted to the ld. CIT(A). 11. We have heard the rival contentions and perused the material placed on record and gone through the judicial decision cited to drive home to the contentions so raised. First, we take up additional ground challenging the validity of the notice issued u/s. 148 of the Act. The brief facts as emerges 15 ITA No. 687/JP/2023 Mohammed Sabir Babubhai Shaikh vs. ITO from the records is that the assessee has challenged that the issue of notice u/s. 148 to him on 20.07.2016 being barred by limitation and is beyond the time for which the notice can be issued. The assessee also submitted that the notice alleged to have been issued within the time i.e. on 14.03.2016 was never served to the assessee. This fact is clear from the remand report submitted by the ld. AO. Even the ld. DR, not controverted the facts placed on record in the form of remand report wherein the it is transpire that the notice u/s 148 was issued to the assessee on 18.03.2016. The address mentioned in the notice though the same, but the city was instead of Ahmedabad written as Jaipur. Thus, that notice issued in March was not served and received back from the post as unserved. The present assessment year is 2009-10 and as per provisions of section 149 the last date for issuance of section 148 of the Act in the case of the assessee was 6 years from the end of the relevant assessment year which in this case expires on 31 st March, 2016 thus as it clearly evident from the record that the notice u/s 148 though issued on 20.07.2016 is barred by limitation. The assessee cited the judgment of CIT Vs. Dr. Ajay Prakash [ 42 taxmann.com 387 (Allahabad) ] wherein the court has held as under : 6. We have examined the findings and do not find any good reason to disagree with the findings of CIT (A) and ITAT in which they have held that notices were sent at a wrong address. The finding recorded by Tribunal in para 3 of the order is quoted as under:— 16 ITA No. 687/JP/2023 Mohammed Sabir Babubhai Shaikh vs. ITO "Here we are concerned only with the valid service of a notice issued u/s 148 of the Act. The invalidity of the notice issued under Section 148 renders the entire reassessment proceedings as null and void whereas non service of a notice issued u/s 148 renders the assessment framed as bad in law. in this case there is no doubt that notice u/s 148 was served on an incorrect address and against which the explanation of the department is that the address of the assessee is well known and the Inspector of the department had gone to a correct address to serve this notice, is not tenable in the eyes of the law when the record reveals that the notice was never served upon the assessee. A notice issued u/s 142 (1) was sent back by Shri Alik Farsaiya, the legal consultant on the reasoning that the notice did not belong to any of his clients. Another notice, allegedly, sent and received by Shri Mahesh, the alleged employee of Dr. Ajay Prakash, when it is found that he was not an employee of the assessee, cannot be said to be duly served. The entire records were produced before the ld. CIT (A) and he found the above contention of the assessee to be correct. Unless a particular person is authorized to receive a notice as his agent, any notice served or received by him would not bind the assessee. In this case, nobody participated in the re-assessment proceedings and the objection regarding the service of notice was taken before ld. AO himself. Therefore newly inserted provisions of Section 292-BB would also not help the department. This is trite law that unless a valid notice is served upon the assessee any reassessment framed has to be quashed. In this regard, the binding decision of jurisdictional high court in the case of Madan Lal Agrawal v. CIT 144 ITR 745 (Ald), inter alia, is relevant and can be cited as relevant decision, being that of the jurisdictional High Court. The ld. AO has refrained from sending his comments even in his reply in remand report despite the fact it was sent to him with a specific direction by the ld. CIT (A) and therefore it is confirmed on record that the AO had nothing to say in the matter. Since the notice was not issued on the known address of the assessee and there being no valid evidence of proper service of this notice, the impugned order passed by the ld. AO becomes bad in laws. Therefore, the ld. CIT (A) has correctly quashed the impugned assessment order. Hence, we cannot allow the appeal of the Revenue and the same is hereby dismissed." 7. The findings recorded by the Income-tax authorities that the notice was sent on wrong address and that the person Mahesh alleged to be an employee of assessee was not authorized to receive notice is a finding of fact. We do not find that the questions of law as framed are such that the same are to be admitted. Since, the fact that the notice issued dated 14.03.2016 is not disputed and the notice dated 20.07.2016 is not as per the limit line prescribed under the Act. Thus, in the light of the discussion so recorded herein above quash the order of the assessment and the legal ground raised by the assessee is allowed. Since we have decided the appeal of the assessee on legal 17 ITA No. 687/JP/2023 Mohammed Sabir Babubhai Shaikh vs. ITO ground, the other grounds on merits of the case are not required to be adjudicated upon as they become infructuous. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 05/06/2024. Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 05/06/2024 *Ganesh Kumar, Sr. PS vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Mohammed Sabir Babubhai Shaikh, Ahmedabad 2. izR;FkhZ@ The Respondent- Income Tax Officer, Ward-6(1), Jaipur 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (ITA No. 687/JP/2023) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar
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