ITO, Jaipur V. SHUBHASHRI PANICKER, Jaipur

ITA 83/JPR/2013

• Counselvise Citation: 8323114 RSA 2013
• Duration Of Justice: 2 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 28-01-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: N K SHRIMAL CA DHK
• Keywords: Opportunity of being heard; Period of limitation; Assessment record; Time period of passing order; Reason to believe
• Section: 142(1); 147; 69; 148; 144

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 JH VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 83/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2003-04 ITO WARD- 3 (2) JAIPUR CUKE VS. MS. SHUBHASHRI PANICKER F-58-B, KALIDAS MARG BANIPARK, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AHFPP 7126 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT C.O. NO. 13/JP/2013 (ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 83/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2003-04 MS. SHUBHASHRI PANICKER F-58-B, KALIDAS MARG BANIPARK, JAIPUR CUKE VS. ITO WARD- 3 (2) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AHFPP 7126 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY :SMT. NEENA JEPH, JCIT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI N.K. SHRIMAL, CA LQUOKBZ DH RKJH[K@ DATE OF HEARING : 16/06/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 26/06/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A), ALWAR DATED 02-11-2012 FOR THE ASSESSMENT Y EAR 2003-04. THE ITA NO. 83/JP/2013 ITO, WARD- 3 (2), JAIPUR VS. MS. SHUBHASHRI PANICKE R . 2 ASSESSEE HAS FILED A C.O. RESPECTIVE GROUNDS ARE RA ISED BY BOTH THE PARTIES AS UNDER:- REVENUES GROUND IN ITA NO. 83/JP/2013 WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS JUSTIFIED IN QUA SHING THE ASSESSMENT ORDER PASSED U/S 147/144 HOLDING THAT TH E NOTICE U/S 148 WAS NOT VALIDLY SERVED UPON THE ASSESSEE. ASSESSEE'S GROUND IN C.O. NO. 13/JP/2013 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT BY DISMISSING GROUND NO. 4 TO 7 AFTER QUASHING THE ASS ESSMENT ORDER IN PARA 4.3 OF ORDER. 2.1 AS IS EVIDENT FROM THE GROUNDS THAT ASSESSEE'S ASSESSMENT IN QUESTION WAS MADE U/S 147 READ WITH SECTION 144 OF THE ACT WHICH WAS APPEALED BY THE ASSESSEE. LD. CIT(A) QUASHED THE RE -ASSESSMENT PROCEEDINGS AND CONSEQUENTLY HELD THAT GROUNDS ON M ERITS AS INFRUCTUOUS. THE REVENUE IS AGAINST THE ORDER OF THE LD. CIT(A) IN QUASHING THE ASSESSMENT AND THE ASSESSEE IS IN THE C.O. FOR THE NOT DECIDING THE ISSUES ON MERITS. 3.1 BRIEF FACTS OF THE CASE ARE THAT INVESTIGATION WING OF THE DEPARTMENT, NEW DELHI GOT INFORMATION THAT BOGUS EN TRY OPERATIONS WERE BEING CARRIED OUT AT LARGE SCALE IN DELHI AND SOME OF WHICH WERE ATTRIBUTABLE AT JAIPUR. THE OPERATORS AND BENEFICIA RIES THEREOF WERE IDENTIFIED IN WHICH ASSESSEE'S NAME WAS FOUND TO H AVE RECEIVED A SUM OF ITA NO. 83/JP/2013 ITO, WARD- 3 (2), JAIPUR VS. MS. SHUBHASHRI PANICKE R . 3 RS. 5,01,000/- VIE CHEQUE NO. 4490098 DATED 13-12-2 002 FROM ONE SHRI NARENDRA THROUGH THE BANK ACCOUNT NO. 24558 WITH SB BJ, NEW ROHTAK ROAD, NEW DELHI. THIS SUM WAS CREDITED TO THE ASSES SEE'S SAVING BANK ACCOUNT NO. 19517 WITH BANK OF BARODA, STATION ROAD , JAIPUR ON 18-12- 2002. BASED ON THIS INFORMATION FROM ADIT (INV.), J AIPUR, LD. AO RECORDED REASONS IN THIS BEHALF ; NOTICE U/S 148 WA S ISSUED ON 22-03- 2010 WITH PRIOR APPROVAL AND WAS SENT TO THE ASSESS EE THROUGH SPEED POST RECEIPT NO. ER 017540747 IN. THE ASSESSEE DID NOT F ILE ANY RETURN OF INCOME IN COMPLIANCE THERETO, THEREAFTER NOTICE U/S 142 OF THE ACT WAS ISSUED ON 4-10-2010 FOR SERVICE ON THE SAME ADDRES S THROUGH SPEED POST FIXING THE DATE OF HEARING ON 19-10-2010. IN RESPON SE THERETO, THE LD. AR OF THE ASSESSEE SHRI N.K. SHRIMAL, CA ATTENDED THE HEARING AND FILED AN APPLICATION FOR ADJOURNMENT. THE CASE WAS ADJOURNED TO 29-10-2010. NO COMPLIANCE WAS MADE FROM THE ASSESSEE. HOWEVER, ON 9-11-2010, THE CA OF THE ASSESSEE ATTENDED AND AGAIN FILED ADJOURNMEN T APPLICATION. THE CASE WAS ADJOURNED TO 26-1-2010. NO COMPLIANCE WAS MADE ON THIS DATE AS WELL. THE AO AGAIN ISSUED QUERY LETTER DATED 26- 11-2010 ALONGWITH NOTICE U/S 142(1) FIXING THE DATE OF HEARING ON 2-1 2-2010. THE LD. AR FILED A LETTER STATING THAT NO NOTICE U/S 148 WAS S ERVED ON THE ASSESSEE AND HE REQUESTED FOR INSPECTION OF THE ASSESSMENT RECO RD WHICH WAS ALLOWED ITA NO. 83/JP/2013 ITO, WARD- 3 (2), JAIPUR VS. MS. SHUBHASHRI PANICKE R . 4 ALONGWITH COPY OF REASONS. ON 2-12-2010, THE LD. AR OF THE ASSESSEE FILED LETTERS CHALLENGING THE VALIDITY OF THE ASSESSMENT PROCEEDINGS. THE AO DISPOSED OFF ALL THE OBJECTIONS BY HOLDING THAT AS PER RECORD NOTICE THROUGH SPEED POST WAS SERVED ON THE ASSESSEE BY FO LLOWING OBSERVATIONS. THE NOTICE U/S 148 WAS ISSUED IN THE NAME OF MS. SHUBASHRI PANIKER, F-58, KAILASH MARG, BANI PARK, J AIPUR ON 22-03-2010 AND SENT FOR SERVICE THROUGH SPEED PO ST ON 22-03-2010. INSPECTION OF THE ASSESSMENT RECORD WER E MADE BY YOUR A/R ON 30-11-2010 AND THIS FACT HAS ALSO B EEN VERIFIED BY YOU A/R . THE SAID NOTICE WAS ALSO NOT RECEIVED BACK UNSERVED. FROM THE ASSESSMENT RECORD, IT HAS A LSO BEEN NOTICED THAT A NOTICE U/S 142(1) DATED 4-10-2010, I SSUED ON THE SAME ADDRESS, FIXING THE HEARING ON 19-10-2010, WHICH WAS SENT FOR SERVICE THROUGH SPEED POST, HAS DULY B EEN SERVED ON YOU AND IN RESPONSE TO WHICH YOUR A/R ATT ENDED THE HEARING ON 19-10-2010 AND THE CASE WAS ADJOURNE D TO 29-10-2010. IT SHOWS THAT ALTHOUGH IN THE NOTICE TH E ROAD NAME WAS MENTIONED AS KAILASH MARG, BANI PARK, JAIP UR INSTEAD OF KAILIDAS MARG, BANI PARK,JAIPUR, THE SPE ED POSTS WERE SERVED ON THE ADDRESS AS THERE IS NO ROAD IN T HE NAME OF KAILASH MARG AT BANI PARK, JAIPUR. IN VIEW OF ABOVE FACTS YOUR APPLICATION IS NOT ACCEPTABLE, AND HENCE THE SAME IS THEREFORE, REJECT ED. ANOTHER LETTER WAS ISSUED CHALLENGING THAT REASONS RECORD WERE ALSO DEALT WITH BY THE AO AS UNDER:- 3.4 I HAVE GONE THROUGH THE SUBMISSIONS OF THE ASSESSEE. AS NARRATED ABOVE, THE PROCEEDINGS U/S 14 7 READ WITH SECTION 148 OF THE I.T. ACT, 1961, WERE INITIA TED AFTER RECORDING VALID REASONS. THE NOTICE U/S 148 OF THE ACT SENT THROUGH SPEED POST HAS ALSO BEEN SERVED ON THE ASSE SSEE AS ITA NO. 83/JP/2013 ITO, WARD- 3 (2), JAIPUR VS. MS. SHUBHASHRI PANICKE R . 5 THE SAME WAS RECEIVED BACK. AS SUCH, I FIND NO MERI T IN THE ARGUMENTS OF THE ASSESSEE, IT WAS HELD IN THE CASE OF R.K. UPADHYAYA V SHANABHA P PATEL (166 ITR 163 (SC); CIT VS. SHEO KUMAR DEBI (157 ITR 13 (PAT.) AND JAI HANUMAN TRADING CO. (P) LTD. VS. CIT 110 ITR 36 (PUNJ. & HA RY.), THAT WHERE THE NOTICE WAS ISSUED WITHIN TIME BUT WA S SERVED ON THE ASSESSEE AFTER THE EXPIRY OF THE TIME LIMIT, IT COULD NOT BE HELD TO BE INVALID. THE HON'BLE SUPREME COURT I N THE CASE OF CIT VS. MAJOR TIKKA KUSHWANT SINGH (212 ITR 650) HELD THAT ISSUANCE OF NOICE WITHIN PERIOD OF LIMITA TION GIVES JURISDICTION TO ASSESSING OFFICER TO PROCEED TO MAK E REASSESSMENT. THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. YAMU INDUSTRIES LTD. 167 TAXMAN 67 HELD THA T THE NOTICE SENT BY REGISTERED POST TO THE CORRECT ADDRE SS OF THE ASSESSEE HAD NOT BEEN RECEIVED BACK UNSERVED WITH IN A PERIOD OF THIRTY DAYS OF ITS ISSUANCE, THERE WAS PR ESUMPTION UNDER LAW THAT THE SAID NOTICE HAD BEEN DULY SERVED UPON THE ASSESSEE WITHIN THE PERIOD OF LIMITATION. IN VIEW O F ABOVE FACTS, ASSESSEE'S CONTENTION IN THIS REGARD IS NOT ACCEPTABLE AND THEREFORE, THE SAME IS REJECTED. SINCE THE ASSESSEE NEITHER FILED THE RETURN OF INCO ME NOR COMPLIED WITH THE STATUTORY OBLIGATIONS AND DID NOT COOPERATE IN THE ASSESSMENT PROCEEDINGS AND FURTHER WENT ON RAISING THE TECHNIC AL OBJECTIONS, THE ASSESSMENT WAS COMPLETE EX-PARTE U/S 14 BY MAKING F OLLOWING ADDITIONS. 7. WITH THE ABOVE REMARKS, INCOME IS COMPUTED AS UNDER:- 1. INCOME ESTIMATED FOR THE YEAR AS ABOVE RS. 1,2 0,000/- 2. INCOME AS DISCUSSED ABOVE IN TERMS OF SECTION 69 OF THE I.T. ACT RS. 10,00,000/- RS. 11,20,000/- 3.2 AGGRIEVED, THE ASSESSEE PREFERRED FIRST APPEAL CHALLENGING THE VALIDITY OF THE ASSESSMENT PROCEEDINGS AS WELL MERI TS OF THE ADDITIONS. ITA NO. 83/JP/2013 ITO, WARD- 3 (2), JAIPUR VS. MS. SHUBHASHRI PANICKE R . 6 THE LD. CIT(A) CONSIDERING THE CONTENTIONS OF THE A SSESSEE ABOUT NON- SERVICE OF NOTICE OF U/S 148 QUASHED THE ASSESSMENT BY FOLLOWING OBSERVATIONS. I FIND THAT IN THE CASE OF THE APPELLANT, THE NOT ICE U/S 148 DATED 22-03-2010 HAS NOT BEEN SENT T ON THE OTHER H AND, THE CORRECT ADDRESS OF THE ASSESSEE I.E. MS. SHUBASHRI PANIKER, F58(B), KAILDAS MARG, BANI PARK, JAIPUR AND THEREFORE, NO V ALID PRESUMPTION CAN ARISE UNDER THE LAW THAT THE SAID N OTICE HAD BEEN DULY SERVED UPON THE ASSESSEE, SINCE IT HAD NOT BEE N RECEIVED BACK UNSERVED. THE PROPER SERVICE OF NOTICE U/S 148 IS E SSENTIAL FOR THE AO TO ASSUME JURISDICTION U/S 147/148 OF THE ACT AN D TO MAKE A VALID ASSESSMENT ORDER. IN THE CASE OF CIT VS. YAMU INDUSTRIES LTD., THE HON'BLE COURT HAS UPHELD THE SERVICE OF NOTICE U/S 143(2) WITHIN THE PERIOD OF LIMITATION SINCE THE NOTICE HA D BEEN CORRECTLY ADDRESSED TO THE ASSESSEE AND SENT BY REGISTERED POST IN CONSONANCE WITH THE REQUIREMENT OF SECTION 282(1) O F THE ACT WITH ORDER V RULE 19A OF THE CPC. IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES OF THE CAS E, I AM OF THE CONSIDERED OPINION THAT THERE IS NO VALID SERVI CE OF NOTICE U/S 148 OF THE ACT AND THE AO HAS INCORRECTLY ASSUMED T HE JURISDICTION U/S 147/148 OF THE ACT. ACCORDINGLY, THE ASSESSMEN T ORDER U/S 147/144 OF THE ACT IS FOUND TO BE INVALID AND IS OR DERED TO BE QUASHED. THE GROUND NO. ONE, TWO AND THREE OF THE A PPELLANT ARE ALLOWED. 3.3 AGGRIEVED BOTH THE PARTIES ARE IN SECOND APPEAL . LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT :- A. LD. AO HAS WRONGLY PRESUMED THAT THE NOTICE SENT BY SPEED POST ON THE ADDRESS MS. SUBHASHRI PANICKER; E-58, ..KAILASH MARG, BANI PARK, JAIPUR VIDE ER 01754074 7 DATED 22- 03-2010 WAS ISSUED AND SERVED UPON THE ASSESSEE. TH E CORRECT ADDRESS OF THE ASSESSEE IS AS UNDER:- ITA NO. 83/JP/2013 ITO, WARD- 3 (2), JAIPUR VS. MS. SHUBHASHRI PANICKE R . 7 MS. SUBHASHRI PANICKER F-58, B KALIDAS MARG, BANI PARK, JAIPUR B. THE ALLEGED NOTICE SENT BY LD. ASSESSING OFFICER WAS NOT A VALID NOTICE SINCE THE ADDRESS ON THE RECEIPT OF SPEED POST WAS NOT OF ASSESSEE FOR THE FOLLOWING REASONS. (I) THE CORRECT PREFIX TO PLOT NO. 58 IS F WHER EAS IN NOTICE PREFIX WAS USED AS E. (II) THE SUFFIX TO PLOT NO. 58 IS B WHICH IS NO T WRITTEN IN THE NOTICE. (III) THE CORRECT NAME OF ROAD IS KAILDAS MARG INST EAD OF KAILASH MARG AS WRITTEN ON THE NOTICE. THE PAN ALLOTMENT LETTER CLEARLY SHOWS THE CORRECT ADDRESS IN THE RECORDS OF DEPARTMENT AND AVAILABLE TO LD. ASSESSING OFFICER. THE ADDRESS WRITTEN ON THE SPEED POST WAS COMPLETELY DEFORMED AND MISMASH. THE LD. ASSESSING OFFICER WHILE DEALING WITH NON-IS SUE OF SERVICE OF NOTICE HAS STATED AS UNDER:- IN THE CASE CITED BY LD AO ABOVE, IT IS CLEARLY STATED THAT NOTICE BE SENT BY REGISTERED POST TO TH E CORRECT ADDRESS. IN THE CASE OF ASSESSEE NOTICE SENT BY LD. ASSESSING OFFICER WAS NOT SENT BY REGISTERED POST AND WAS ALS O SENT ERRONEOUSLY ON THE ADDRESS WHICH IS NOT OF THE AND DIFFERENT AT THREE STAGS AS STATED ABOVE. THE NOTICE WAS SENT ON INCORRECT ADDRESS AND ASSESSING OFFICER CANNOT MECH ANICALLY PRESUME THAT IT WAS DULY SERVED. C. LD. CIT(A) HAS CORRECTLY HELD THAT THE LD ASSESS ING OFFICER HAS FAILED TO ISSUE AND SERVE A VALID NOTIC E TO ASSESSEE WITHIN THE LIMITATION PERIOD, WHICH IS PRE-REQUISIT E FOR MAKING ASSESSMENT U/S 147/144 OF THE I.T. ACT AND PROCEEDI NG AND ASSESSMENT MADE THEREAFTER ON THE BASIS OF SUCH INV ALID NOTICE IS ITA NO. 83/JP/2013 ITO, WARD- 3 (2), JAIPUR VS. MS. SHUBHASHRI PANICKE R . 8 VOID ABINITIO. WE RESPECTFULLY SUBMIT THAT DECISION OF CIT (A) SHOULD BE UPHELD AND APPEAL OF REVENUE SHOULD BE DI SMISSED. 3.4 APROPOS C.O., IT IS SUBMITTED THAT THE LD. CIT( A) OUGHT TO HAVE DECIDED THE OTHER ISSUES ABOUT THE CORRECTNESS OF R EASONS AND ITS NEXUS WITH ASSESSEE'S CASE. IF THE REASONS ARE BASED ON W RONG ASSESSMENT THEN THEY CANNOT MAKE A CORRECT FOUNDATION FOR BELIEF. THE REASON TO BELIEVE IS MERELY SOME INFORMATION FROM INVESTIGATION WING A ND THERE IS NO INDEPENDENT APPLICATION OF MIND BY ASSESSING OFFICE R BEFORE RE-OPENING THE CASE. THE ASSESSING OFFICER HAS NOT APPLIED HIS INDEPENDENT MIND WHICH IS EVIDENT FROM FOLLOWING. (I) THE REASON CONTENTS THE WORD SOME INQUIRIES WHICH IMPLIES EVEN THE FULLY INQUIRY WAS NOT COMPLE TED AND THE ASSESSING OFFICER HAS ACCEPTED THE FACT AS GOSPEL T RUTH WITHOUT ANY FURTHER ENQUIRY. (II) THE REASON TO BELIEVE IS BASED ON BOGUS ENTRY OPERATOR. THE FULL NAME, ADDRESS, PAN AND NATURE OF TRANSACTION WERE NOT GIVEN IN THE INFORMATION. (III) THE STATEMENT RECORDED BY INVESTIGATION CELL IS NOT FORMED PART OF REASON. (IV) THE NATURE OF BOGUS ENTRY IS NOT EXPLAINED FUL LY WHETHER IT IS LOAN, SHARE TRANSACTION, SHARE CAPITAL, PURCH ASE/ SALES OF ASSETS, ADVANCE FOR ANY EXPENSES ETC. (V) NO ENQUIRY IS MADE BY INVESTIGATION CELL WITH T HE ASSESSEE THEREBY BARRING ASSESSEE RIGHT IN HEARING. THE ITA NO. 83/JP/2013 ITO, WARD- 3 (2), JAIPUR VS. MS. SHUBHASHRI PANICKE R . 9 INVESTIGATION CELL HAS REFERRED THE NAME WITHOUT AN Y EXAMINATION OF ASSESSEE AND WITHOUT GIVING AN OPPORTUNITY TO BE HE ARD. IT IS SUBMITTED THAT THE NOTICE U/S 148/147 OF THE I.T. ACT WAS WITHOUT ANY REASON TO BELIEVE BUT ON THE BASIS OF S USPICION AND SOME INFORMATION PROVIDED BY INVESTIGATION WING AND NOTICE BASED UPON SUCH SUSPICION SHOULD BE QUASHED. WITHOUT PREJUDICE TO GROUNDS IT IS CONTENDED THAT THE ADDITION OF RS. 5,00,000/- IS UNJUSTIFIED AS:- (A) THE CASE WAS OPENED FOR RS. 501000 DATED 18-12- 2002 AND NOT FOR AMOUNT OF RS. 50,00,000/-. (B) IN STATEMENT PROVIDING REASONS FOR REOPENING TH E NATURE OF ENTRY WAS NOT PROVIDED TO THE ASSESSEE. RELIANCE IS PLACED BY THE LD. AR OF THE ASSESSEE AS UNDER:- (1) ASHOK B BAFNA VS. DCIT (2012) 27 TAXMANN.COM 12 6 (MUM) (2) ITO VS. OM EXIM (P) LTD. 40 TAXMANN.COM 133 (DE LHI) (3) CIT VS. DR. AJAY PRAKASH 42 TAXMANN. COM 387 (A LL.) 3.5 THE LD. DR ON THE OTHER HAND CONTENDS THAT NOTI CES ISSUED U/S 148 AND 142(1) WERE SERVED ON THE ASSESSEE. IN RESPONSE THERETO, THE LD. AR OF THE ASSESSEE DULY APPEARED FROM TIME TO TIME AND SO UGHT ADJOURNMENTS WITHOUT RAISING ANY GRIEVANCE ABOUT NON-SERVICE OF 148 NOTICE. IT IS ONLY AT THE FAG END OF THE ASSESSMENT BY WAY OF AN AFTER THOUGHT THAT STORY ABOUT NON-SERVICES OF THE NOTICES U/S 148 WAS CONCO CTED TO DEFEAT THE STATUTORY PROCESS OF THE ASSESSMENT. THE NOTICE U/ S 148 WAS ISSUED IN THE NAME OF MS. SHUBASHRI PANIKER, F-58, KAILASH MA RG, BANI PARK, ITA NO. 83/JP/2013 ITO, WARD- 3 (2), JAIPUR VS. MS. SHUBHASHRI PANICKE R . 10 JAIPUR ON 22-03-2010 AND SENT FOR SERVICE THROUGH S PEED POST ON 22-03- 2010. THIS SPEED POST WAS NOT RECEIVED BACK FROM TH E POSTAL AUTHORITIES SUGGESTING ANY NON SERVICE. AGAIN THE NOTICE U/S 14 2(1) DATED 4-10-2010 FIXING HEARING ON 19-10-2010 WAS SENT ON THE SAME A DDRESS. IN RESPONSE TO WHICH, SHRI N.K. SHRIMAL, CA/A/R ATTENDED THIS O FFICE ON 19-10-2010 WHICH CLEARLY DEMONSTRATES THAT NOTICES WERE BEING DULY SERVED ON THE ASSESSEE AND COMMUNICATED TO HER CA. FROM THESE FAC TS, IT IS EVIDENT THAT THE NOTICE U/S 148 SENT THROUGH SPEED POST STAND DU LY BEEN SERVED ON THE ASSESSEE IN THE EYES OF LAW. IT HAS BEEN HELD BY HO N'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. YAMU INDUSTRIES LTD. (SUP RA), IF IT IS ASSUMED THAT FIRST NOTICE WAS NOT SERVED ON THE ASSESSEE THEN IN SECOND NOTICE IF THE ASSESSEE APPEARED AND DID NOT RAISE ANY OBJECTION A FTER 30 DAYS OF ISSUANCE OF NOTICE, THEN AND IT IS A VALID PRESUMPT ION UNDER LAW THAT NO NOTICE IS SERVED. THIS FACT IS FURTHER CORROBORATED BY REPEATED APPEARANCE OF AR OF THE ASSESSEE. APROPOS REASONS RECORDED FOR REOPENING, THE IMPUGNED BOGUS ENTRY WAS FOUND IN THE BOOKS OF THE ASSESSEE; IT HAS BEEN HELD BY THE HON'BLE APEX COURT IN THE CASE OF PHOOL CHAND BAJRANG LAL AND ANOTHER VS. ITO , 203 ITR 456 THAT IT IS NOT FO R THE COURT TO JUDGE THE SUFFICIENCY OF REASONS RECORDED FOR FORMING TH E BELIEF WHICH IS THE INITIAL STAGE OF INCOME ESCAPING ASSESSMENT. THE AO HAD VALID ITA NO. 83/JP/2013 ITO, WARD- 3 (2), JAIPUR VS. MS. SHUBHASHRI PANICKE R . 11 INFORMATION IN HIS POSSESSION WHICH IS PLACED ON TH E RECORD. IT IS PLEADED THAT THE LD. CIT(A) ERRED IN HOLDING THAT THERE IS NO SERVICE OF NOTICE AND ASSUMPTION OF JURISDICTION IS INVALID. 3.6 LD. DR RELIED ON THE ORDER OF THE TRIBUNAL IN T HE CASE OF ITO VS. SHRI SARABH (SAURABH) CHARAN (ITA NO.1119/JP/2011 D ATED 5-12-2014) HOLDING AS UNDER:- 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH TH E PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. B Y AFFIXTURE NOTICE WAS SERVED ON THE GIVEN ADDRESS OF THE ASSESSEE ON 26/09/2008. EVEN THE ASSESSEE HIMSELF ADMITTED THAT HE HAD RECEIVED NOTI CE DATED 30/09/2008 ON 09/10/2008, WHICH IS WITHIN 12 MONTHS FROM THE D ATE OF RETURN FILED I.E. 31/10/2007. THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF AMARJIT SINGH TUT (SUPRA) HAS HELD THAT STATUTE OF LIMITATION IS A PROCEDURAL STATUTE AND IS APPLICABLE TO PENDING PRO CEEDINGS. OBJECTION TO THE TERRITORIAL JURISDICTION HAS TO BE RAISED AT THE EARLIEST AND IT OTHERWISE DEEMED TO HAVE BEEN WAIVED. THE HONBLE C OURT FURTHER HELD THAT FOR A.Y. 2007-08 EVEN NOTICE ISSUED AND SERVED WITHIN ONE YEAR FROM THE END OF THE DATE OF RETURN IS VALID NOTICE U/S 143(2)(II) OF THE ACT. IN ANOTHER CASE, THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. JASBIR SINGH NRI THROUGH SHRI JARNA IL SINGH, POA IN ITA NO. 253 OF 2012 (O&M) ORDER DATED 21/2/2012 HAS HELD THAT NOTICE ISSUE ON THE LAST KNOWN ADDRESS IS VALID SERVICE. I T IS FURTHER HELD THAT IT WAS INCUMBENT ON THE TRIBUNAL NOT TO QUASH THE WHOL E PROCEEDINGS AS IT AMOUNTED TO LEAVING THE ASSESSEE GO SCOT FREE, THOU GH HE IS LIABLE TO PAY TAX ON THE CAPITAL GAINS. THE ASSESSEE RECEIVED COM PENSATION ON COMPULSORY ACQUISITION OF LAND, THEREFORE, HE CANNO T DENY HIS LIABILITY TO PAY LONG TERM CAPITAL GAIN TAX. MERELY BECAUSE THER E WAS SOME ERROR IN SERVICE OF NOTICES ON THE ASSESSEE, STATUTORY LIABI LITY OF THE ASSESSEE TO PAY TAX ON CAPITAL GAIN WAS NOT OVER. BECAUSE OF PR OCEDURAL LAPSE, THE ASSESSEE SHOULD NOT BE A GAINER AND THAT TOO BY DEF AULT TO ESCAPE HIS LIABILITY. SQUALLY, ORDER OF THE TRIBUNAL ALSO LAC KS MERIT. THE CASE LAW CITED BY THE LEARNED DR I.E. V.R.A. COTTON MILLS P . LTD. VS. UNION OF INDIA (SUPRA) IS SQUARELY APPLICATION ON THE ASSESS EES CASE WHEREIN IT HAS BEEN HELD THAT PRESCRIBED TIME LIMIT FOR NOTICE , THE EXPRESSION SERVE AND ISSUE ARE INTERCHANGEABLE, AS HAS BEE N NOTICED IN SECTION 27 OF THE GENERAL CLAUSES ACT, 1897 AND ALS O IN A JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF BANARSI DE VI VS. ITO (1964) ITA NO. 83/JP/2013 ITO, WARD- 3 (2), JAIPUR VS. MS. SHUBHASHRI PANICKE R . 12 53 ITR 100 (SC), THEREFORE, THE MOMENT, NOTICE IS S IGNED AND PUT IN THE COURSE OF TRANSMISSION BY THE DEPARTMENT, THE NOTIC E IS DUE TO BE SERVED. IT HAS BEEN HELD THAT NOTICE, WHICH WAS SERVED BY T HE AFFIXTURE ON THE LAST DAY OF LIMITATION IS VALID. THE APPELLANT HAD NOT F ILED ANY FIR AGAINST THE CLAIM THAT SOMEBODY HAD FILED HIS RETURN AS CLA IMED BEFORE THE LEARNED CIT(A), THEREFORE, WE SET ASIDE THE ORDER O F THE LEARNED CIT(A) AND DIRECTED TO FRAME THE ORDER AS PER LAW AFTER PR OVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES. THE HON'BLE DELHI HIGH COURT DECISION IN THE CASE OF M/S. YAMU INDUSTRIES LTD. (SUPRA) IS AS UNDER:- 15. SO, THE PROVISIONS OF SECTION 282 OF THE ACT WITH REGARD TO THE SERVICE OF NOTICE HAVE BEEN DULY COMP LIED WITH BY THE REVENUE. SINCE THE NOTICE U/S 143(2) OF THE ACT SEN T BY THE REGISTERED POST HAD NOT BEEN RECEIVED BACK [UNSERVE D] WITHIN THIRTY DAYS OF ITS ISSUANCE, SO THERE WOULD BE PRESUMPTION UNDER THE LAW THAT NOTICE HAS BEEN DULY SERVED UPON THE ASSESSEE. 16. IN THE INSTANT CASE, SINCE THE NOTICE HAS NOT B EEN RECEIVED BACK UNSERVED WITHIN THE PERIOD OF THIRTY DAYS OF ITS ISSUANCE, UNDER THESE CIRCUMSTANCES, IT HAS TO BE H ELD THAT THE NOTICE HAS BEEN DULY SERVED UPON THE ASSESSEE. 17. ACCORDINGLY, WE HOLD THAT NOTICE U/S 143(2) OF THE ACT HAS BEEN DULY SERVED UPON THE ASSESSEE WITHIN THE P ERIOD OF LIMITATION AND THIS FINDING OF THE TRIBUNAL THAT NO NOTICE U/S 143(2) OF THE ACT HAS BEEN SERVED WITHIN THE PRESCRIBED PE RIOD IS LIABLE TO BE SET ASIDE. 18. AS SUCH, THE PRESENT APPEAL FILED BY THE REVENU E IS ACCEPTED AND THE IMPUGNED ORDER PASSED BY THE TRIBU NAL IS SET ASIDE AND CONSEQUENTLY, THE ORDER QUASHING THE ASSE SSMENT FOR THE PERIOD IN QUESTION IS ALSO SET ASIDE. ITA NO. 83/JP/2013 ITO, WARD- 3 (2), JAIPUR VS. MS. SHUBHASHRI PANICKE R . 13 IT IS PLEADED THAT BANI PARK IS A POSH AREA OF JAIP UR WITH RESIDENT WHO ARE WELL KNOWN. A MINOR TYPOGRAPHICAL ERROR IN THE ROAD OR MENTIONING OF E/F CANNOT MAKE A SIGNIFICANT DIFFERENCE, STATUTORY NOT ICES GOT SERVED ON THE ASSESSEE WHICH IS EVIDENT FROM THE REPEATED APPEARA NCES. THE FACT OF THE MATTER IS THAT ALL THE NOTICES WERE SERVED ON THE A SSESSEE AND THE LD. AR OF THE ASSESSEE ATTENDED THE HEARING TIME AND AGAIN. C ONSEQUENTLY THE ASSESSEES ASSERTIONS ARE PATENTLY WRONG, SELF CONT RADICTORY AND CONTRARY TO OVERALL FACTS ON THE RECORD. LD. CIT(A) IGNORING THESE VITAL FACTS WAS NOT CORRECT IN QUASHING THE ASSESSMENT. 3.7 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD, AS THE FACTS EMERGE THE FIRST NOTICE WAS TRANSMITTED BY LD. AO THROUGH SPEED POST WHICH IS NOT BEEN DISPUTE D BY THE ASSESSEE AFTER INSPECTION. IT IS THUS CLEAR THAT THE NOTICE WAS UNDER TRANSMISSION BY HANDING OVER TO THE POSTAL AUTHORITY WHO ACTED AS A N AGENT OF THE RECIPIENT. THE SPEED POST NOTICE HAS BEEN RETURNED MENTIONING THE ADDRESS AS WRONG OR UNDELIVERED WHICH IS A STANDARD PRACTIC E OF THE POSTAL DEPARTMENT. ASSESSEES AR IN THE INITIAL HEARINGS N EVER INDICATED THAT 148 NOTICE WAS NOT PROPERLY SERVED. THE LAME OBJECT ION IS TAKEN AT THE FAG END OF ASSESSMENT, WHICH CLEARLY SMACK OF A DESIGN. THUS IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF THE CASE AND CASE LAW S OF CIT VS. YAMU ITA NO. 83/JP/2013 ITO, WARD- 3 (2), JAIPUR VS. MS. SHUBHASHRI PANICKE R . 14 INDUSTRIES LTD. (SUPRA) AND ITAT JUDGEMENT IN THE C ASE OF ITO VS. SHRI SARABH (SAURABH) CHARAN (SUPRA), IT IS HELD THAT TH E LD. CIT(A) GLOSSED OVER THE RELEVANT FACTS AND COMMITTED AN ERROR IN Q UASHING THE RE- ASSESSMENT PROCEEDINGS. CONSEQUENTLY THE ORDER OF L D. CIT(A) QUASHING THE REASSESSMENT IS QUASHED. REVENUE APPEAL IS ALLO WED. 3.8 APROPOS ASSSESSEES GROUND NO 4 IN CO, IT IS HE LD BY HON'BLE SUPREME COURT IN THE CASE OF PHOOL CHAND BAJRANG LA L (SUPRA), THAT SUFFICIENCY OF REASONS CANNOT BE GONE INTO BY THE C OURT AT THE TIME OF RECORDING OF REASONS AS IT IS THE BEGINNING OF THE PROCESS OF REASSESSMENT. ASSESSEE ATTITUDE WAS TOTALLY NON-COOPERATIVE IN CO MPLIANCE AND THE ALLEGED DISCREPANCY ABOUT INFORMATION CANNOT BE HEL D TO BE FATAL TO THE RECORDING OF THE REASONS. CONSEQUENTLY GROUND NO. 4 OF ASSESSEES APPEAL IS DISMISSED. 3.9 APROPOS REMAINING GROUNDS OF THE C.O. OF THE AS SESSEE, SINCE THE ORDER OF THE LD. CIT(A) QUASHING THE REASSESSMENT I S REVERSED BY THIS ORDER, IT WILL BE DESIRABLE THAT ON MERITS THE ADDI TIONS ARE ADJUDICATED UPON WHICH IS NOT DONE BY THE LD. CIT(A). IN VIEW T HEREOF, THE MERIT OF THE CASE AS RAISED IN GROUNDS OF APPEAL PERTAINING TO GROUND NO. 5 TO 7 ARE RESTORED BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH ON ITA NO. 83/JP/2013 ITO, WARD- 3 (2), JAIPUR VS. MS. SHUBHASHRI PANICKE R . 15 MERITS AFTER PROVIDING REASONABLE OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE. 4.0 IN THE RESULT, THE APPEAL OF THE REVENUE IS ALL OWED AND C.O. OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE S. ORDER PRONOUNCED IN THE OPEN COURT ON 26/06/2015 . SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 26/06/ 2015 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, WARD- 3 (2), JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- MS. SHUBHASHRI PANICKER, JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.83/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR