Harish Bhasin, New Delhi V. ACIT, Central Circle-3, New Delhi

ITA 7344/DEL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3276 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 20-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUNESH KUMAR
• Assessee Lawyers: K R MANJANI
• Keywords: Question of law; Assessment record; Onus to prove; Reassessment proceedings; Set aside
• Section: 271(1)(c); 142(1); 292BB; 139(1); 13; 22; 147; 148; 144; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH C : NEW DELHI) BEFORE SHRI O.P. KANT, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.5853/DEL./2016 (ASSESSMENT YEAR : 2006-07) ITA NO.5854/DEL./2016 (ASSESSMENT YEAR : 2007-08) ITA NO.5855/DEL./2016 (ASSESSMENT YEAR : 2007-08) ITA NO.7343/DEL./2018 (ASSESSMENT YEAR : 2006-07) ITA NO.7344/DEL./2018 (ASSESSMENT YEAR : 2007-08) ITA NO.7345/DEL./2018 (ASSESSMENT YEAR : 2008-09) SHRI HARISH BHASIN, VS. ACIT, CENTRAL CIRCLE 3, T 1, RAJOURI GARDEN, NEW DELHI. NEW DELHI. (PAN : AALPB2977Q) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K.R. MANJANI, ADVOCATE REVENUE BY : SHRI MUNESH KUMAR, CIT DR DATE OF HEARING : 19.02.2020 DATE OF ORDER : 24.02.2020 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 2 SINCE COMMON QUESTIONS OF FACTS AND LAW HAVE BEEN R AISED IN THE AFORESAID CROSS APPEALS FILED BY THE ASSESSE E, THE SAME ARE BEING DISPOSED OFF BY WAY OF COMPOSITE ORDER TO AVO ID REPETITION OF DISCUSSION. 2. APPELLANT, SHRI HARISH BHASIN (HEREINAFTER REFER RED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEALS, ITA NOS.5 853, 5854 & 5855/DEL/2016, SOUGHT TO SET ASIDE THE IMPUGNED ORD ERS ALL DATED 27.10.2016 PASSED BY THE COMMISSIONER OF INCOME - T AX (APPEALS)-23, NEW DELHI QUA THE ASSESSMENT YEARS 2 006-07, 2007-08 & 2008-09 ON THE IDENTICAL GROUNDS INTER AL IA THAT :- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED ON FACTS AS WELL AS IN LAW IN DISMISSING THE APPEAL INSPITE OF THE FACT THAT DEPARTMENT HAS NO PROOF FOR SERVIC E OF NOTICE U/S. 148. 2. THE PRESUMPTION OF SERVICE UNDER CLAUSE 27 OF TH E GENERAL CLAUSES ACT, WOULD NOT BE AVAILABLE WHERE T HE PARTY HAS DENIED THE SERVICE, AS PER HON'BLE SUPREME COURT AS WELL AS HON'BLE DELHI HIGH COURT JUDGMENTS WHICH HAVE NEITH ER THE LEARNED ASSESSING OFFICER NOR THE LEARNED COMMISSIO NER OF INCOME TAX (APPEAL) REFERRED NOR THIS ARGUMENT DEAL T WITH IN THEIR ORDERS, INSPITE OF HAVING BEEN GIVEN IN WRITT EN ARGUMENTS TO BOTH OF THEM. 3. DISMISSAL OF APPEAL BECAUSE NOTHING IS STATED ON MERITS, IS IRRELEVANT WHEN THE ISSUE BEFORE THE LEARNED ASS ESSING OFFICER, AS PER INCOME TAX APPELLATE TRIBUNAL ORDERS AND AS ARGUED BY THE ASSESSEE WAS SERVICE OF NOTICE UNDER SECTION 14 8, QUESTION OF MERIT WILL COME ONLY WHEN THE LEARNED ASSESSING OFF ICER PASSES THIS HURDLES AND SHOWS THE PROOF FOR SERVICE. IT IS, THEREFORE, PRAYED THAT ORDERS OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) MAY KINDLY BE SET ASIDE AND ASSESSMENT QUASHED, THE SAME BEING WITHOUT SERVICE IN TIME OF PRELIMINARY AND FOUNDATION NOTICE U/S 148. ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 3 3. APPELLANT, SHRI HARISH BHASIN (HEREINAFTER REFER RED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEALS, ITA NOS.7 343, 7344 & 7345/DEL/2018, SOUGHT TO SET ASIDE THE IMPUGNED ORD ERS ALL DATED 15.09.2018 PASSED BY THE COMMISSIONER OF INCOME - T AX (APPEALS)-15, NEW DELHI QUA THE ASSESSMENT YEARS 2 006-07, 2007-08 & 2008-09 CONFIRMING THE PENALTIES LEVIED U /S 271(1)(C) OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) O N THE IDENTICAL GROUNDS INTER ALIA THAT:- LEARNED A.O. AS WELL AS CIT APPEAL HAS ERRED ON FA CTS AS WELL AS LAW IN IMPOSING AND SUSTAINING THE PENALTY EVEN THO UGH THE ASSESSMENT IS VOID DUE TO NON SERVICE OF NOTICE U/S 148. ON THIS ACCOUNT APPEAL AGAINST ASSESSMENT IS PENDING IN HON 'BLE TRIBUNAL. LEARNED A.O. AS WELL AS CIT APPEAL ARE SILENT AND N OT INDICATING OR SHOWING ANY PROOF OF SERVICE OF NOTICE U/S 148 C ONSEQUENTLY VERY BASIS OF IMPOSING PENALTY IS WRONG AND IS WITH OUT ANY FOUNDATION. IT IS PRAYED THAT PENALTY LEVIED MAY KINDLY BE CANC ELLED. ITA NOS.5853, 5854 & 5855/DEL/2016 AYS : 2006-07, 2007-08 & 2008-09 4. BRIEFLY STATED THE IDENTICAL FACTS NECESSARY FOR ADJUDICATION IN ALL THE AFORESAID APPEALS AT HAND ARE : ASSESSEE DI D NOT FILE RETURN OF INCOME FOR AYS 2006-07, 2007-08 & 2008-09. IN AYS 2006-07 & 2007-08, PROCEEDINGS U/S 147 WERE INITIATED VIDE NO TICES DATED 05.06.2009. NOTICES U/SS 148 & 142 (1) OF THE ACT WERE ALSO ISSUED IN ALL THE AFORESAID YEARS AND STATED TO HAV E BEEN SERVED ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 4 UPON THE ASSESSEE. ASSESSEE IS A DIRECTOR IN A COM PANY, M/S. ALPHA BHOJ LTD. AND ALSO RUNNING A PROPRIETORSHIP C ONCERN IN THE NAME OF M/S. ALPHA ASSOCIATES. ON FAILURE OF THE A SSESSEE TO APPEAR, ASSESSING OFFICER (AO) PROCEEDED TO FRAME T HE ASSESSMENT U/S 254/144 OF THE ACT BY MAKING ADDITION OF RS.34, 15,65,858/-, RS.9,17,59,044/- & RS.1,14,07,313/- IN AYS 2006-07, 2007-08 & 2008-09 RESPECTIVELY ON THE GROUND THAT FROM THE BA NK STATEMENT OF THE ASSESSEE QUA THE BANK ACCOUNT MAINTAINED WITH A BN AMRO BANK, IT WAS NOTICED THAT THE ASSESSEE HAD DEPOSITE D A TOTAL AMOUNT OF RS.34,15,65,858/-, RS.9,17,59,044/- & RS.1,14,07 ,313/- IN AYS 2006-07, 2007-08 & 2008-09 RESPECTIVELY WHICH THE A SSESSEE HAD FAILED TO EXPLAIN. IN ALL THE AFORESAID YEARS, FRO M THE PERUSAL OF THE RECORD PERTAINING TO AY 2005-06, AO NOTICED THAT TH E ASSESSEE HAD SHOWN A COMMISSION INCOME OF RS.13,93,050/- AND ASS UMING THAT ASSESSEE WOULD HAVE BEEN CARRYING OUT THE SAME BUSI NESS DURING THE YEARS UNDER ASSESSMENTS AND PROCEEDED TO ESTIMA TE COMMISSION INCOME AT RS.25,00,000/-, RS.35,00,000/- & RS.45,00 ,000/- IN AYS 2006-07, 2007-08 & 2008-09 RESPECTIVELY. 5. IN AY 2006-07, AO ALSO NOTICED FROM THE RECORD T HAT ASSESSEE HAS GIVEN UNSECURED LOAN TO M/S. ALPHA BHO J LTD. AND CLOSING BALANCE OF M/S. ALPHA BHOJ LTD. WAS RS.45,5 0,000/- AS ON 31.03.2006 AND THEREBY MADE ADDITION OF THE SAME BE ING INCOME ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 5 FROM UNDISCLOSED SOURCES. IN AY 2007-08, AO ALSO M ADE ADDITION OF RS.2,42,50,000/- ON NOTICING FROM THE RECORD THA T ASSESSEE HAS GIVEN UNSECURED LOAN TO M/S. ALPHA BHOJ LTD. AND MA DE THE ADDITION OF RS.2,42,50,000/- WHICH IS THE CLOSING B ALANCE AS ON 31.03.2007 BY TREATING THE SAME AS INCOME FROM UNDI SCLOSED SOURCES AND THEREBY COMPLETED THE ASSESSMENT. 6. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) BY WAY OF FILING THE SEPARATE APPEALS FOR AYS 2006-07, 2007-0 8 & 2008-09 WHO HAVE CONFIRMED THE ADDITIONS BY DISMISSING THE APPEALS. FEELING AGGRIEVED BY THE ORDERS PASSED BY THE LD. C IT (A), THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT CROSS APPEALS. 7. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 8. THIS IS SECOND ROUND OF LITIGATION BEFORE THE TR IBUNAL AS THE EARLIER APPEALS BEARING ITA NOS.1469 TO 1471/DEL/20 12 FILED BY THE ASSESSEE WERE DISPOSED OFF VIDE COMPOSITE ORDER DATED 29.05.2014 VIDE WHICH ALL THE AFORESAID APPEALS WER E REMITTED BACK TO AO FOR DE NOVO CONSIDERATION OF ASSESSEES OBJEC TION THAT ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 6 NOTICES ISSUED U/S 148 IN AYS 2006-07 & 2007-08 AND NOTICE ISSUED U/S 142 (1) IN AY 2008-09 WERE NEVER SERVED UPON. 9. AT THE VERY OUTSET, LD. AR FOR THE ASSESSEE SOUG HT TO DECIDE THE LEGAL ISSUE AS TO THE SERVICE OF THE NOTICE U/S 148 RAISED VIDE GROUND NO.3, ISSUE WHICH WAS REMITTED BACK BY THE T RIBUNAL EARLIER TO DECIDE AFRESH BY THE AO. 10. UNDISPUTEDLY, ASSESSEE HAS NOT FILED RETURN OF INCOME FOR AYS 2006-07, 2007-08 & 2008-09. IT IS ALSO NOT IN DISPUTE THAT TO INITIATE THE REOPENING U/S 147 OF THE ACT, SERVICE OF NOTICE U/S 148 IS A MANDATORY PROVISION. IT IS ALSO NOT IN DISPUT E THAT ASSESSEE STATED TO HAVE NOT APPEARED BEFORE THE AO DURING IN ITIAL ASSESSMENT ON THE GROUND THAT HE HAD NOT RECEIVED ANY NOTICE Q UA THE ASSESSMENT PROCEEDINGS. 11. IN THE BACKDROP OF THE AFORESAID FACTS AND CIRC UMSTANCES OF THE CASE, THE FIRST QUESTION TO BE DECIDED IN THIS CASE IS :- AS TO WHETHER NOTICES DATED 05.06.2009 STATED TO H AVE BEEN ISSUED BY THE AO FOR AYS 2006-07, 2007-08 & 2008-09 WERE SERV ED UPON THE ASSESSEE? 12. IN ORDER TO DECIDE THE AFORESAID ISSUE, ASSESSM ENT RECORDS WERE SUMMONED AND PERUSED BY THE BENCH WITH THE ASS ISTANCE OF THE LD. AR FOR THE ASSESSEE AS WELL AS LD. DR FOR T HE REVENUE AND COPIES OF NOTICES ALONG WITH COPY OF DISPATCH REGIS TER WERE RETAINED ON THE FILE FOR READY PERUSAL. ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 7 13. FOR READY PERUSAL, PARA 1 OF THE ASSESSMENT ORD ER FOR AYS 2006-07, 2007-08 & 2008-09, IDENTICALLY WORDED, CON TAINING FACTS AS TO ISSUANCE AND SERVICE OF NOTICE U/S 148 IS EXT RACTED AS UNDER :- ORIGINAL ASSESSMENT IN THIS CASE WAS COMPLETED UND ER SECTION 144 BY THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL C IRCLE-13, NEW DELHI ON 27.12.2010. THE ASSESSEE DID NOT FILE A RE TURN OF INCOME FOR THE ASSESSMENT YEAR 2006-07 UNDER SECTION 139(1) OF THE INCOME TAX ACT, 1961. THE PROCEEDINGS U/S 147 WERE INITIATED V IDE NOTICE DATED 05.06.2009. HOWEVER, NO RETURN WAS FILED IN RESPONS E TO THIS NOTICE U/S 148 ALSO. NOTICE U/S 142(1) WERE ALSO ISSUED AND SE RVED ON THE ASSESSEE ON VARIOUS DATES. HOWEVER NO RESPONSE WAS RECEIVED FROM THE ASSESSEE. A FINAL OPPORTUNITY WAS GIVEN TO THE ASSESSEE VIDE LETTER DATED 22.09.2010 TO APPEAR ON 29.09.2010. NO ONE APPEARED ON THIS DATE AND NO REPLY WAS FILED WITH THIS OFFICE. 14. PERUSAL OF THE AFORESAID NARRATION GIVEN BY THE AO AS TO ISSUANCE OF SERVICE OF NOTICE DATED 05.06.2009 U/S 148 SHOWS THAT IT DOES NOT CONTAIN FACTS IF THE NOTICE (SUPRA) WERE E VER SERVED UPON THE ASSESSEE, IT JUST CONTAINS THE FACT THAT NOTICE S U/S 148 WERE ISSUED ON 05.06.2009. WHEN WE FURTHER EXAMINE ASSE SSMENT RECORD VIZ. ORDER SHEET PREPARED BY THE AO AND DISP ATCH REGISTER, NO DOUBT COPY OF NOTICES DATED 05.06.2009 FOR AYS 2 006-07 & 2007-08 IS REPORTEDLY ISSUED ON 05.06.2009 VIDE DIS PATCH REGISTER BUT THE RECORD IS ALTOGETHER SILENT IF THE SAID NOT ICES WERE SERVED UPON THE ASSESSEE OR RECEIVED BACK SERVED/UNSERVED NOR COPY OF ACKNOWLEDGEMENT FROM THE POSTAL AUTHORITY ACKNOWLED GING THE RECEIPT OF NOTICE IS THERE ON THE FILE. IT IS SETT LED PRINCIPLE OF LAW THAT WHEN THE ASSESSEE HAS SPECIFICALLY CHALLENGED SERVICE OF NOTICE ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 8 U/S 148 AS WELL AS U/S 142 (1) SINCE THE STAGE OF A SSESSMENT IT IS THE DUTY OF THE REVENUE TO PROVE THE SERVICE OF NOTICE. 15. HONBLE SUPREME COURT IN CASE OF V.N. BHARAT VS. D.D.A. & ANR. 2008 (6) SUPREME 343 HELD IN THE IDENTICAL SITUATION THAT, ONUS OF PROVING OF SERVICE OF NOTICE IS ON THE REVE NUE BECAUSE EXCEPT FOR DENIAL THERE WAS NOTHING ELSE THAT APPEL LANT COULD HAVE PRODUCED TO PROVE A NEGATIVE FACT AND PRESUMPTION U NDER SECTION 114(4) OF THE EVIDENCE ACT IS A REBUTTABLE PRESUMPT ION AND ON DENIAL OF RECEIPT OF THE REGISTERED LETTER FROM DDA , APPELLANT DISCHARGED HIS ONUS AND THE ONUS REVERTED BACK TO R ESPONDENT TO PROVE SUCH SERVICE BY EITHER EXAMINING POSTAL AUTHO RITIES OR OBTAINING A CERTIFICATE FROM THEM SHOWING THAT THE REGISTERED ARTICLE HAD BEEN DELIVER TO AND HAD BEEN RECEIVED B Y THE APPELLANT AND IT WAS ON A MISTAKE UNDERSTANDING OF PROVISIONS OF SECTION 114(F) OF THE EVIDENCE ACT THAT THE COMMISSION CAME TO THE ERRONEOUS CONCLUSION THAT ALLEGATION OF UNFAIR TRAD E PRACTICE ON THE PART OF THE RESPONDENT AUTHORITY HAD NOT BEEN PROVE D AND RESPONDENT AUTHORITY WAS UNABLE TO PROVE THAT SERVI CE OF THE DEMAND NOTICE FOR THE FIFTH AND FINAL INSTALLMENT H AD BEEN EFFECTED ON APPELLANT. THE ALLEGATION OF UNFAIR TRADE PRACT ICE ON THE PART OF THE RESPONDENT AUTHORITY STOOD ESTABLISHED, THE IMP UGNED JUDGMENT OF MRTP COMMISSION HENCE SET ASIDE AND THE APPEAL A LLOWED. ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 9 16. SO, IN VIEW OF THE LAW LAID DOWN BY HONBLE SUP REME COURT, IT IS BOUNDED DUTY OF THE REVENUE TO PROVE THE SERV ICE OF NOTICE UNDER SECTIONS 148 AND 142(1) TO THE ASSESSEE. 17. LD. DR FOR THE REVENUE SUPPORTED THE ORDER PASS ED BY THE AO AS WELL AS LD. CIT (A) BY CONTENDING THAT NOTICE S HAVE BEEN DULY SERVED IN DUE PROCESS AND RELIED UPON THE ORDE R SHEET ENTRY AND DISPATCH REGISTER SHOWING COPY OF NOTICE AND DI SPATCH THEREOF THROUGH POSTAL DEPARTMENT. LD. DR HAS ALSO FILED W RITTEN SUBMISSIONS WHICH HAVE BEEN MADE PART OF THE JUDICI AL FILE AND THE OPERATIVE PART OF WHICH IS EXTRACTED AS UNDER :- 4. THE ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (S PECIAL ACTS), CENTRAL, TIS HAZARI COURTS, NEW DELHI, IN HI S JUDGMENT DATED 26.07.2013 HAS CONVICTED THE APPELLANT AFTER HOLDING THAT THE NOTICE WERE DULY SERVED UPON THE ACCUSED. (COPY ENCLOSED AT ANNEXURE '2'). THE HON'BLE MAGISTRATE HAS RECORDED AS UNDER IN HIS REMARKS. 'C) ACCUSED HAS TAKEN A DEFENCE THAT NO NOTICE WAS RECEIVED BY HIM. IN SUPPORT OF HIS CLAIM AND CONTEN TION, ACCUSED EXAMINED ON MR. OIL BAHADUR THAPA AS DW1 WHO STATED IN HIS EVIDENCE THAT HE HAS BEEN WORKING AS A GATE KEEPER AT T-L, RAJOURI GARDEN, THE RESIDENCE O F ACCUSED, FOR THE LAST 10-11 YEARS AND HE HAS NOT RE CEIVED ANY NOTICE/DOCUMENT FROM INCOME TAX DEPARTMENT DURING 2006-10. THIS PLEA OF DW1 IS NOT SUSTAINABLE AT ALL ON TWO COUNTS. FIRSTLY, DW1 FAILED TO ESTABLISH OR BRING ANY DOCUMENT ON RECORD TO SHOW THAT IN FACT HE WAS WORKING AS GATE KEEPER AT THE RESIDENCE OF ACCUSED DURING THE RELEVANT PERIOD. SOMETIMES, IT MAY HAPPEN THAT A POST MAN MIGHT HAVE DROPPED THE LETTER AT THE GIVEN ADDR ESS. BUT NOT AGAIN AND AGAIN. A PRUDENT POST MAN IS NOT SUPPOSED TO DELIVER THE PARCEL/LETTERS (PARTICULARL Y SENT THROUGH REGISTERED/SPEED POST) TO ANY PERSON OTHER THAN ADDRESSEE AFTER OBTAINING SIGNATURE OF THAT PERSON. IN HIS CROSS EXAMINATION, DWL CLEARLY STATED THAT DELIVERY OF LETTER IS MADE BY THE POSTMAN TO THE ADDRESSEE ONLY AFTER TAKING HIS SIGNATURE. ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 10 AS PER SECTION 27 OF THE GENERAL CLAUSES ACT, 1897 THE SERVICE SHALL BE DEEMED TO BE EFFECTED IF THE SAME IS PROPERLY ADDRESSED, PREPAID AND POSTED BY REGISTERE D POST. RELEVANT PARA OF THE AFORESAID SECTION READS AS UND ER:- 'MEANING OF SERVICE BY POST:- WHERE ANY (CENTRAL ACT) OR REGULATION MADE* AFTER THE COMMENCEMENT OF THIS ACT, AUTHORIZES OR REQUIRES ANY DOCUMENT TO BE SERVED BY POST, WHETHER THE EXPRESSION 'SERVE' OR EITHER OF THE EXPRESSION 'GIVE' OR 'SEND' OR ANY OTHER EXPRESSION IS USED, THEN UNLESS A DIFFERENT INTENTION APPEARS. THE SERVICES SHALL BE DEEMED TO BE EFFECTED BY PROPERLY ADDRESSING, PREPAYING- AND POSTING BY REGISTERED POST, A LETTER CONTAINING THE DOCUMENT, AND UNLESS THE CONTRARY IS PROVED, TO HAVE BEEN EFFECTED 'AT THE TIME AT WHICH THE LETTER WOULD BE DELIVERED IN THE ORDINARY COURSE OF POST.', D) COMPLAINANT HAS PLACED ON RECORD COPY OF SPEED POST BOOKING LIST. IT IS CLEAR FROM THE NOTICES EX. PW1/4, EX.PW1/5, EX.PW1/6. EX.PW1/7 AND SPEED POST BOOKING LIST, THAT ALL NOTICES WERE SENT TO ACCUSED MENTION ING CORRECT ADDRESS. IT IS NOT THE CASE OF THE ACCUSED THAT NOTICES WERE SENT AT INCORRECT ADDRESS. IT IS PERTI NENT TO MENTION HERE THAT SUMMONS ISSUED TO ACCUSED AT THE SAME ADDRESS RECEIVED BACK DULY EXECUTED. ACCUSED ALSO FURNISHED BAIL BOND MENTIONING SAME ADDRESS. THUS, KEEPING IN VIEW THE AFORESAID DISCUSSIONS AND FACTS AND CIRCUMSTANCE OF THE CASE, IT IS HELD THAT THE NOTIC ES WERE DULY SERVED UPON THE ACCUSED.' 5. IN A LARGE NUMBER OF CASES HON'BLE COURTS OF REC ORD HAVE HELD THAT IF THE NOTICE IS NOT RECEIVED BACK W ITHIN THE PERIOD OF 30 DAYS OF ITS ISSUANCE, IT IS TO BE HELD THAT T HE NOTICE HAS BEEN DULY SERVED UPON THE ASSESSEE. THE ORDER OF HON'BLE JURISDICTIONAL HIGH COURT OF DELHI IN CIT VS YAMU I NDUSTRIES LIMITED (2008) 306 ITR 309 (COPY ENCLOSED FOR READY REFERENCE AT ANNEXURE '3'). 6. RULE 19A OF CODE OF CIVIL PROCEDURE IS RELEVANT IN THE PRESENT CASE. THE PROVISO TO SUB RULE 2 READS AS UN DER: 'PROVIDED THAT WHERE THE SUMMONS WAS PROPERLY ADDRESSED, PREPAID AND DULY SENT BY REGISTERED POST , ACKNOWLEDGEMENT DUE, THE DECLARATION REFERRED TO IN THIS SUB-RULE SHALL BE MADE NOTWITHSTANDING THE FACT THA T THE ACKNOWLEDGEMENT HAVING LOST OR MISLAID, OR FOR OTHE R ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 11 REASON, HAS BEEN RECEIVED BY THE COURT WITHIN THIRT Y DAYS FROM THE DATE OF THE ISSUE OF THE SUMMONS.' 7. REGARDING THE DISCUSSION, DURING THE HEARING, AB OUT THE REQUIREMENT OF THE ASSESSING OFFICER MAKING A DECLARATION/RECORDING ON THE ORDER SHEET, IN A CASE WHERE A NOTICE SENT BY REGISTERED POST HAS NOT BEEN RECEIVED BACK UNSERVED, SPECIFYING THAT THE NOTICE IS DEEMED TO HAVE BEEN S ERVED, THE FOLLOWING ARE SUBMITTED: A. THERE IS NO SUCH REQUIREMENT IN SECTION 282 OR A NY OTHER SECTION OF INCOME TAX ACT. B. THE ASSESSING OFFICER IN THE ASSESSMENT ORDER AS WELL AS THE LD. CIT(A) IN THE APPELLATE ORDER HAVE UNAMBIGUOUSLY DECLARED THAT THE NOTICE HAS BEEN SER VED. C. IF THE SERVICE OF NOTICE WAS TO GET INVALIDATED MERELY BECAUSE OF THE ASSESSING OFFICER'S OMISSION TO RIGH T ON THE ORDER SHEETS, THAT THE NOTICE IS DEEMED TO HAVE BEE N SERVED, MOST OF THE ASSESSMENTS COMPLETED BY THE IN COME TAX DEPARTMENT WOULD BECOME INVALID. THESE SUBMISSIONS ARE PRAYED TO BE TAKEN ON RECORD AND INCLUDED IN THE ORDER OF THE HON'BLE BENCH. 18. WHEN WE EXAMINE THE ORDER SHEET ENTRIES FOR AY S 2006-07 & 2007-08 PREPARED IN DUE COURSE OF OFFICIAL DUTY B Y THE AO, EXCEPT FOR THE FACT THAT NOTICES WERE ISSUED ON 05. 06.2009, THERE IS NOT A WHISPER EVEN IF THE SAID NOTICES WERE SERVED UPON THE ASSESSEE. IDENTICALLY WORDED ORDER SHEET ENTRIES D ATED 05.06.2009 FOR AYS 2006-07 & 2007-08 ARE EXTRACTED FOR READY P ERUSAL AS UNDER :- NOTICE U/S 148 ISSUED ON 05.06.2009 FOR FILING TH E RETURN OF INCOME FOR THE AY 2006-07 29.9.09 NOTICE U/S 142(1) ISSUED FOR 15.10.09 SD/- AO 15.10.09 NONE ATTENDED SD/- AO 17.10.09 NOTICE U/S 142(1) ISSUED FOR 25.12.09 SD/- AO ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 12 25.12.09 NONE ATTENDED SD/- AO 23.9.10 NOTICE U/S 142(1) ISSUED FOR 29.9.10 SD/- AO 29.9.10 NONE ATTENDED SD/- AO 27.12.10 ORDER U/S 144 PASSED SD/- AO NOTICE U/S 148 ISSUED ON 05.06.2009 FOR FILING TH E RETURN OF INCOME FOR THE AY 2007-08 29.9.09 NOTICE U/S 142(1) ISSUED FOR 15.10.09 SD/- AO 15.10.09 NONE ATTENDED SD/- AO 17.10.09 NOTICE U/S 142(1) ISSUED FOR 25.12.09 SD/- AO 25.12.09 NONE ATTENDED SD/- AO 23.9.10 NOTICE U/S 142(1) ISSUED FOR 29.9.10 SD/- AO 29.9.10 NONE ATTENDED SD/- AO 27.12.10 ORDER U/S 144 PASSED SD/- AO 19. THIS FACT IS ALSO CLEAR FROM PARA 1 OF THE ASSE SSMENT ORDER, EXTRACTED IN THE PRECEDING PARA. MERELY PRODUCING T HE CARBON COPY OF NOTICE AND DISPATCH REGISTER ENTRY DOES NOT PROV E SERVICE OF NOTICE ON THE ASSESSEE. 20. IN CASE, AO IS TO PROCEED TO FRAME ASSESSMENT U /S 144 OF THE ACT ON THE BASIS OF DUE SERVICE, HE IS REQUIRED T O BRING THESE FACTS ON RECORD IN THE ORDER SHEET THAT NOTICES ISSUED TO THE ASSESSEE U/S 148/142(1) ON 05.06.2009 WERE SERVED UPON THE ASSES SEE OR NOT RECEIVED BACK SERVED/UNSERVED AND A PERIOD OF ONE M ONTH HAS SINCE ELAPSED AND AS SUCH, THE SAME IS DEEMED SERVED. BU T NO SUCH FACTS ARE THERE EITHER IN THE ORDER SHEET OR IN THE ASSES SMENT ORDER. ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 13 21. UNDER ORDER V RULE 16 OF THE CODE OF CIVIL PROC EDURE, 1908, PERSONS SERVED TO SIGN THE ACKNOWLEDGEMENT, W HICH READS AS UNDER :- 16. PERSON SERVED TO SIGN ACKNOWLEDGMENT.- WHERE T HE SERVING OFFICER DELIVERS OR TENDERS A COPY OF THE S UMMONS TO THE DEFENDANT PERSONALLY, OR TO AN AGENT OR OTHER PERSO N ON HIS BEHALF, HE SHALL REQUIRE THE SIGNATURE OF THE PERSO N TO WHOM THE COPY IS SO DELIVERED OR TENDERED TO AN ACKNOWLEDGEM ENT OF SERVICE ENDORSED ON THE ORIGINAL SUMMONS. 22. TO PROVE THE SERVICE OF SUMMON, THE AO DURING T HE ASSESSMENT PROCEEDINGS WERE REQUIRED TO BRING ON RE CORD THAT BY SUCH AND SUCH ACKNOWLEDGMENT SERVICE OF NOTICE WAS EFFECTED ON THE ASSESSEE OR HE WAS REQUIRED TO EXAMINE THE POST AL AUTHORITIES TO PROVE THAT NOTICE (SUPRA) WAS DULY SERVED UPON THE ASSESSEE. BUT ENTIRE RECORD MAINTAINED AND PRODUCED BY THE REVENU E IS SILENT IF SERVICE WAS ACTUALLY AFFECTED ON THE ASSESSEE NOR A NY SERVICE REPORT OR ACKNOWLEDGMENT FROM THE POSTAL DEPARTMENT HAS BE EN BROUGHT ON RECORD. 23. NEEDLESS TO SAY THAT DURING THE FIRST ROUND OF LITIGATION THE CASE WAS REMITTED BACK BY THE TRIBUNAL TO THE AO TO DECIDE AFRESH IF THE NOTICE (SUPRA) WAS SERVED UPON THE ASSESSEE ON THE BASIS OF EVIDENCE AVAILABLE WITH THE REVENUE, HOWEVER AO HAS DECIDED THIS ISSUE AGAIN ON THE FACT THAT NOTICE WAS DISPATCHED VIDE ORDER SHEET ENTRY AND DISPATCH REGISTER ON 05.06.2009 AND HAS A GAIN NOT ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 14 PREFERRED TO SUBSTANTIATE HIS FINDING WITH THE EVI DENCE AVAILABLE, IF ANY, RATHER REITERATED FINDINGS RETURNED IN THE ORI GINAL ASSESSMENT. 24. SO FAR AS SERVICE OF NOTICE U/S 142 (1) UPON TH E ASSESSEE FOR AY 2008-09 WAS CONCERNED, AGAIN AO RECORDED IN PARA 1 OF THE ASSESSMENT ORDER THAT, NOTICE U/S 142 (1) ISSUED AND SERVED UPON THE ASSESSEE ON VARIOUS DATES , HOWEVER NO SUCH DATES HAVE BEEN BROUGHT ON RECORD ON WHICH THE SERVICE OF NOTICE WA S EFFECTED UPON THE ASSESSEE. 25. WITH THE ASSISTANCE OF THE LD. DR FOR THE REVEN UE, WE HAVE PERUSED THE ASSESSMENT RECORD IN THE PRESENCE OF LD . AR FOR THE ASSESSEE WHICH DOES NOT CONTAIN ANY ORDER SHEET REG ARDING THIS FACT, IF ANY SUCH NOTICE U/S 142 (1) WAS ISSUED TO THE AS SESSEE. THERE IS ONE NOTICE DATED 24.09.2009, WITH OVERWRITING AND C OPY OF DISPATCH REGISTER SHOWING DISPATCH OF ORDER ON 25.09.2009 IN THE ASSESSMENT RECORD BUT THE SAME IS NOT SUFFICIENT TO TREAT THE SERVICE OF ASSESSEE EFFECTED FOR THE REASONS RECORDED AND DISCUSSED IN THE PRECEDING PARAS FOR RETURNING FINDINGS QUA AYS 2006-07 & 2007 -08. 26. SO FAR AS QUESTION OF OVERWRITING IS CONCERNED WHICH IS QUITE VISIBLE BUT DOES NOT GO ROOT OF THE CASE AS MANY A TIMES WRONG DATE IS WRITTEN AND THEN TO AVOID PREPARING OF FRESH NOT ICE, DATE IS CORRECTED BY OVERWRITING. AGAIN AS DISCUSSED IN TH E PRECEDING PARAS, THERE IS NO ACKNOWLEDGEMENT OR ANY OTHER EVI DENCE ON THE ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 15 FILE AS REQUIRED UNDER ORDER V RULE 16 OF THE CPC T O TREAT THE SERVICE OF ASSESSEE AFFECTED QUA AY 2008-09 ALSO. MOREOVER, AO AT NO STAGE OF ASSESSMENT PROCEEDINGS TRIED TO ENSU RE IF NOTICE STATED TO HAVE BEEN ISSUED WERE SERVED UPON THE ASS ESSEE, THOUGH HE WAS HAVING SUFFICIENT TIME TO CONCLUDE THE ASSES SMENT RATHER MERELY RELIED UPON COPY OF DISPATCH REGISTER AND TR EATED THE SAME EFFECTED. 27. RELIANCE PLACED BY THE LD. DR FOR THE REVENUE O N THE JUDGMENT DATED 26.07.2017 PASSED BY THE ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (ACMM) (SPECIAL ACTS), CENT RAL, TIS HAZARI COURTS, NEW DELHI , TO PROVE THE SERVICE OF NOTICE UPON ASSESSEE, WHICH IS ANNEXURE-2 ENCLOSED WITH WRITTEN SUBMISSIONS FILED BY THE LD. DR, IS ENTIRELY MISPLACED BECAUSE LD. ACMM IN HIS WISDOM DECIDED THE ISSUE AS TO THE SERVICE OF NOTIC E UPON THE ASSESSEE ENTIRELY ON THE BASIS OF THE FACT THAT, THE ASSESSEE HAS FAILED TO ESTABLISH OR BRING ANY DOCUMENT ON RECORD TO SHOW THAT HE WAS NOT SERVED UPON AND ON THE FACT THAT U/S 27 OF THE GENERAL CLAUSES ACT, MEANING OF SERVICE BY POST INCLUDES DE EMED SERVICE. 28. FIRST OF ALL, AS DISCUSSED IN THE PRECEDING PAR AS, HONBLE SUPREME COURT IN THE CASE OF V.N. BHARAT (SUPRA) HELD THAT THE ONUS TO PROVE THAT SERVICE OF NOTICE HAS BEEN EFFEC TED ON THE ASSESSEE IS ON THE REVENUE AND THE ASSESSEE IS NOT TO BE CALLED UPON ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 16 TO PROVE NEGATIVE. SECONDLY, SO FAR AS QUESTION OF DEEMED SERVICE OF NOTICE BY POST ON THE ASSESSEE IS CONCE RNED, NO SUCH VIEW HAS BEEN TAKEN BY THE AO AT ANY STAGE OF THE C ASE. ORDER SHEET ENTRIES PREPARED IN THE DUE COURSE OF OFFICIA L DUTIES BY THE AO ARE SELF-SPEAKING WHICH SHOWS THAT HE HAS PROCEEDED TO FRAME THE ASSESSMENT ON THE BASIS OF SYMBOLIC NOTICE WITHOUT HAVING ANY FOLLOW UP IF THE SAME WAS SERVED UPON AND HAS NOWHE RE TAKEN THE VIEW THAT IT IS A CASE OF DEEMED SERVICE. LASTLY , WE ARE OF THE CONSIDERED VIEW THAT ISSUE BEFORE THE BENCH IS TO B E DECIDED ON THE BASIS OF FACTS AND EVIDENCE ON RECORD AND NOT ON TH E BASIS OF BORROWED FINDINGS RETURNED BY LD. ACMM IN JUDGMENT (SUPRA). 29. RELIANCE PLACED BY THE LD. DR FOR THE REVENUE O N THE JUDGMENT PASSED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. YAMU INDUSTRIES LTD. (SUPRA) IS ALSO MISPLACED BECAUSE IT IS NOWHERE THE CASE OF THE AO AT ANY STAGE OF THE A SSESSMENT PROCEEDINGS THAT HE HAS PROCEEDED TO HOLD THE SERVI CE OF NOTICE ON THE ASSESSEE AS DEEMED SERVICE. BECAUSE THERE IS NOT AN IOTA OF EVIDENCE ON FILE IF NOTICE SERVED UPON THE ASSESSEE WAS NOT RECEIVED BACK WITHIN A PERIOD OF 30 DAYS OF ITS ISSUANCE AS NEITHER RECORD OF POSTAL AUTHORITIES NOR STATEMENT OF ANY SERVING OFF ICIAL OF THE POSTAL DEPARTMENT HAS COME ON RECORD TO PROVE THAT NOTICE WAS SERVED UPON THE ASSESSEE. ENTIRE ASSESSMENT PROCEEDINGS E X-FACIE GO TO ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 17 PROVE THAT AO AT NO STAGE TRIED AND ENSURED IF NOTI CE HAS BEEN SERVED UPON THE ASSESSEE. SO, THE JUDGMENT RELIED UPON BY THE LD. DR FOR THE REVENUE IS NOT APPLICABLE TO THE FACTS A ND CIRCUMSTANCES OF THE CASE. 30. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, WE AR E OF THE VIEW THAT SERVICE OF NOTICE U/S 148 DATED 05.06.200 9 FOR AYS 2006- 07 & 2007-08 AND SERVICE OF NOTICE DATED 24.09.2009 U/S 142 (1) IN AY 2008-09 IS NOT PROVED TO HAVE BEEN EFFECTED UPON THE ASSESSEE IN ACCORDANCE WITH PROVISIONS CONTAINED UNDER SECTI ON 282 (1) OF THE ACT READ WITH ORDER UNDER RULE XII AND ORDER II I RULE 6 OF CPC, 1908 WHICH IS A JURISDICTIONAL PRE-CONDITION T O FINALIZE THE REASSESSMENT AND AS SUCH, REVENUE HAS FAILED TO PRO VE THE PROPER SERVICE OF NOTICE U/S 148 OF THE ACT ON THE ASSESSE E, AS THERE IS NOT AN IOTA OF EVIDENCE ON RECORD TO PROVE THIS FACT. SO, THE QUESTION FRAMED IS ANSWERED IN NEGATIVE. 32. NOW, THE NEXT QUESTION ARISES FOR DETERMINATION IN THIS CASE IS :- AS TO WHAT IS THE EFFECT OF NON-SERVICE OF NOTICE (SUPRA) U/S 148 OF THE ACT FOR AY 2006-07 & 2007-08 AND NOTICE (SUP RA) U/S 142(1) OF THE ACT FOR AY 2008-09 ON THE ASSESSMENT FRAMED BY THE AO U/S 254/144 OF THE ACT? 33. IT IS SETTLED PRINCIPLE OF LAW THAT WHEN SERVIC E OF NOTICE U/S 148 OR U/S 142(1), AS THE CASE MAY BE, IS NOT PROVE D TO HAVE BEEN ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 18 EFFECTED ON THE ASSESSEE, THE ENTIRE PROCEEDINGS U/ S 147 ARE WITHOUT JURISDICTION, HENCE NOT SUSTAINABLE. 34. HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. CHETAN GUPTA 382 ITR 613 (DEL.) IN THE IDENTICAL FACTS AND CIRCUMSTANCES HELD THAT THE NON-SERVICE OF NOTICE U/S 148 OF THE ACT AS A PRE- CONDITION FOR FINALIZING THE ASSESSMENT AND ORDER T O QUASH THE REASSESSMENT PROCEEDINGS BY RETURNING FOLLOWING FIN DINGS :- UNDER SECTION 148 OF THE INCOME-TAX ACT, 1961, THE ISSUE OF NOTICE TO THE ASSESSEE AND SERVICE OF SUCH NOTICE U PON THE ASSESSEE ARE JURISDICTIONAL REQUIREMENTS THAT MUST BE MANDATORILY COMPLIED WITH. THEY ARE NOT MERE PROCEDURAL REQUIRE MENTS. FOR THE ASSESSING OFFICER TO EXERCISE JURISDICTION TO R EOPEN AN ASSESSMENT, NOTICE UNDER SECTION 148(1) HAS TO BE M ANDATORILY ISSUED TO THE ASSESSEE. FURTHER THE ASSESSING OFFIC ER CANNOT COMPLETE THE REASSESSMENT WITHOUT SERVICE OF THE NO TICE SO ISSUED UPON THE ASSESSEE IN ACCORDANCE WITH SECTION 282(1) OF THE ACT READ WITH ORDER V RULE 12 AND ORDER III RULE 6 OF T HE CODE OF CIVIL PROCEDURE,1908. ALTHOUGH THERE IS CHANGE IN T HE SCHEME OF SECTIONS 147, 148 AND 149 OF THE ACT FROM THE CORRE SPONDING SECTION 34 OF THE 1922 ACT, THE LEGAL REQUIREMENT O F SERVICE OF NOTICE UPON THE ASSESSEE IN TERMS OF SECTION 148 RE AD WITH SECTION 282(1) AND SECTION 153(2) OF THE ACT IS A JURISDICT IONAL PRE- CONDITION TO FINALISING THE REASSESSMENT. THE ONUS IS ON THE DEPARTMENT TO SHOW THAT PROPER SERVICE OF NOTICE HA S BEEN EFFECTED UNDER SECTION 148 OF THE ACT ON THE ASSESS EE OR AN AGENT DULY EMPOWERED BY HIM TO ACCEPT NOTICES ON HIS BEHA LF. THE MERE FACT THAT AN ASSESSEE OR SOME OTHER PERSON ON HIS B EHALF NOT DULY AUTHORISED PARTICIPATED IN THE REASSESSMENT PROCEED INGS AFTER COMING TO KNOW OF IT WILL NOT CONSTITUTE A WAIVER O F THE REQUIREMENT OF EFFECTING PROPER SERVICE OF NOTICE O N THE ASSESSEE UNDER SECTION 148 OF THE ACT. REASSESSMENT PROCEEDI NGS FINALISED BY AN ASSESSING OFFICER WITHOUT EFFECTING PROPER SE RVICE OF NOTICE ON THE ASSESSEE UNDER SECTION 148(1) OF THE ACT ARE INVALID AND LIABLE TO BE QUASHED. HELD ACCORDINGLY, THAT NO ATTEMPT HAD BEEN MADE BY THE DEPARTMENT TO SERVE THE ASSESSEE AT THE ADDRESS PRO VIDED BY HIM. ALL THE NOTICES WERE ADDRESSED TO HIM AT ANOTHER AD DRESS C/O. KIRAN CINEMA. THEREFORE, THIS WAS NOT A CASE WHERE AN ATTEMPT WAS MADE BY THE DEPARTMENT TO SERVE THE ASSESSEE AT HIS KNOWN ADDRESS, AND UPON NOT FINDING HIM THERE THE DEPARTM ENT LEARNT ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 19 OF THE ADDRESS WHERE HE WOULD BE FOUND. MERELY BECA USE OTHER NOTICES SENT TO THE 'ASSESSEE GROUP' WERE RECEIVED BY THE EMPLOYEES OF KIRAN CINEMA IT DID NOT AUTOMATICALLY LEAD TO THE INFERENCE THAT THE ASSESSEE'S PLACE OF BUSINESS WAS ALSO KIRAN CINEMA. IN ANY EVENT, THERE COULD NOT BE AN INFEREN CE THAT V WAS DULY EMPOWERED BY THE ASSESSEE TO RECEIVE NOTICES O N HIS BEHALF. IN THE VERY FIRST NOTICE DATED MARCH 28, 2008 THE E NDORSEMENT MADE BY V SHOWED HIM DESCRIBING HIMSELF AS 'ACCOUNT ANT, KIRAN CINEMA' AND NOTHING MORE. THE ASSESSEE MADE A SPECI FIC REQUEST TO THE ASSISTANT COMMISSIONER THAT A COPY OF NOTICE UNDER SECTION 148 ALONG WITH BASIS AND REASON OF OPENING THE CASE UNDER SECTION 148 BE PROVIDED TO THEM TO ENABLE HIM TO CO MPLY WITH IT. HOWEVER, THE ASSISTANT COMMISSIONER IN HIS REPLY OF THE SAME DATE CONTINUED TO SHOW THE ADDRESSES OF THE ASSESSE E AS C/O KIRAN CINEMA AND INSISTED THAT NOTICE HAD BEEN VALIDLY SE RVED ON V, ACCOUNTANT OF KIRAN CINEMA (WHO ALSO RECEIVED OTHER NOTICES OF THE CONCERNED GROUP CONCERNS). SECTION 292BB IS PRO SPECTIVE. IN ANY EVENT THE ASSESSEE IN THE PRESENT CASE, HAVING RAISED AN OBJECTION REGARDING THE FAILURE BY THE DEPARTMENT T O EFFECT SERVICE OF NOTICE UPON HIM, THE MAIN PART OF SECTIO N 292BB WAS NOT ATTRACTED. SINCE NO PROPER SERVICE OF NOTICE HA D BEEN EFFECTED UNDER SECTION 148(1) OF THE ACT ON THE ASSESSEE, TH E REASSESSMENT PROCEEDINGS WERE LIABLE TO BE QUASHED. 35. HONBLE DELHI HIGH COURT IN CASE OF CIT VS. RAJESH KUMAR SHARMA 311 ITR 235 (DEL.) HELD THAT, ONUS TO PROVE THAT NOTICE ISSUED U/S 148 HAS BEEN SERVED UPON THE ASSESSEE IS ON THE REVENUE PARTICULARLY WHEN THE ASSESSEE HAD CATEGORICALLY DE NIED RECEIVING THE NOTICE AND THEREFORE, IT COULD NOT BE SAID THAT NOTICE WAS CORRECTLY ADDRESSED TO THE ASSESSEE. 36. HONBLE DELHI HIGH COURT IN CASE OF CIT VS. LUNAR DIAMONDS LTD. 281 ITR 1 (DEL.) HELD THAT WHEN THE ASSESSEE HAS DENIED TO HAVE RECEIVED THE SERVICE OF NOTICE U/S 1 43(1)/143 (2), THE BURDEN OF PROVE SERVICE OF NOTICE IS ON THE REVENUE TO PROVE THAT THE NOTICE WAS SERVICED BY RETURNING FOLLOWING FIND INGS :- ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 20 HELD, DISMISSING THE APPEAL, THAT THE ASSESSEE HAD FILED AN AFFIDAVIT STATING THAT IT HAD NOT RECEIVED THE NOTI CE AND THE TRIBUNAL RIGHTLY HELD THAT UNDER THESE CIRCUMSTANCE S, THE BURDEN WAS UPON THE DEPARTMENT TO PROVE THAT NOTICE WAS SE RVED UPON THE ASSESSEE WITHIN THE PRESCRIBED TIME. THE DEPAR TMENT HAD FAILED TO PROVE ITS CASE IN THIS REGARD. THE TRIBU NAL WAS RIGHT IN SETTING ASIDE THE ORDER OF ASSESSMENT. NO SUBSTANT IAL QUESTION OF LAW AROSE FROM ITS ORDER. 37. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE AND FO LLOWING THE LAW LAID DOWN BY HONBLE DELHI HIGH COURT DISCUSSED IN THE PRECEDING PARAS, WE ARE OF THE CONSIDERED VIEW THAT WHEN THE REVENUE HAS FAILED TO PROVE THE MANDATORY SERVICE O F NOTICE UPON THE ASSESSEE ISSUED U/S 148 AND U/S 142(1), AS THE CASE MAY BE, ASSESSMENT FRAMED BY THE AO U/S 254/144 OF THE ACT IS NOT SUSTAINABLE, HENCE ORDERED TO BE QUASHED. CONSEQUE NTLY, APPEALS FILED BY THE ASSESSEE BEARING ITA NOS.5853, 5854 & 5855/DEL/2016 FOR AYS : 2006-07, 2007-08 & 2008-09 RESPECTIVELY ARE ORDERED TO BE ALLOWED. ITA NOS.7343, 7344 & 7345/DEL./2018 AYS : 2006-07, 2007-08 & 2008-09 38. ON THE BASIS OF ASSESSMENTS FRAMED U/S 254/144 OF THE ACT MAKING VARIOUS ADDITIONS IN AYS 2006-07, 2007-08 & 2008-09, AO INITIATED THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT AND REACHED THE CONCLUSION THAT ASSESSEE HAS CONCEALED HIS INCOME AND FURNISHED INACCURATE PARTICULARS OF INCOME AND THER EBY LEVIED THE ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 21 PENALTY OF RS.11,73,88,798/-, RS.4,02,71,624/- & RS .54,51,082/- @ 100% FOR AYS 2006-07, 2007-08 & 2008-09. 39. IN VIEW OF OUR FINDINGS ON THE QUANTUM APPEALS FILED BY THE ASSESSEE IN THE PRECEDING PARAS VIDE WHICH VERY ASS ESSMENTS FRAMED U/S 254/144 OF THE ACT HAS BEEN HELD TO BE VOID AB INITIO AND ORDERED TO BE QUASHED, THE PENALTY LEVIED BY TH E AO AND SUSTAINED BY THE LD. CIT (A) IS NOT SUSTAINABLE AS HAS BEEN HELD BY HONBLE SUPREME COURT IN THE CASE OF KC BUILDERS & ANR. VS. ACIT 265 ITR 562 (SC) . CONSEQUENTLY, PENALTY LEVIED BY THE AO AND CONFIRMED BY THE LD. CIT (A) FOR AYS 2006-07, 2 007-08 & 2008-09 ARE ORDERED TO BE DELETED. 40. CONSEQUENTLY, QUANTUM APPEALS BEARING ITA NOS.5 853, 5854 & 5855/DEL/2016 AND PENALTY APPEALS BEARING ITA NOS .7343, 7344 & 7345/DEL./2018 FOR AYS 2006-07, 2007-08 & 2008-08 RESPECTIVELY FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 24 TH DAY OF FEBRUARY, 2020. SD/- SD/- (O.P. KANT) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 24 TH DAY OF FEBRUARY , 2020 TS ITA NOS.5853, 5854 & 5855/DEL./2016 ITA NOS.7343, 7344 & 7345/DEL./2018 22 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-23 / CIT (A)-15, NEW DELHI 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.