Income Tax Appellate Tribunal - Jaipur
Ito, Jaipur vs Mahla Real Estate Pvt. Ltd., Jaipur on 23 January, 2020
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH 'B', JAIPUR
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BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SINGH YADAV, AM
vk;dj vihy la-@ITA No. 465/JP/2017
fu/kZkj.k o"kZ@Assessment Year : 2007-08.
The Income Tax Officer, cuke M/s. Mahla Real Estate Pvt. Ltd.,
Ward 2(2), Vs. 12-13, Patel Colony, Laxmi Path,
Jaipur. Sardar Patel Marg, Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAECM 1489 L
vihykFkhZ@Appellant izR;FkhZ@Respondent
jktLo dh vksj ls@ Revenue by : Shri Kalika Singh (CIT)
fu/kZkfjrh dh vksj ls@Assessee by : Shri S.L. Poddar (Advocate)
lquokbZ dh rkjh[k@ Date of Hearing : 22.01.2020.
?kks"k.kk dh rkjh[k@ Date of Pronouncement : 23 /01/2020.
vkns'k@ ORDER
PER SANDEEP GOSIAN, J.M.
This is an appeal by the revenue arising out of the order of ld. CIT (A)-I, Jaipur dated 29.03.2017 for the assessment year 2007-08. The grounds raised by the revenue are as under :-
" 1. Whether on the facts and in the circumstances of the case and in law ld. CIT (A) has erred in quashing the assessment order only on the ground that the notice issued u/s 148 was not served upon the assessee which is factually incorrect. The notice issued u/s 148 was received by Sh. Chandan, on the direction of Sh. Amar Gupta, the Director of the assessee.
2. Whether on the facts and in the circumstances of the case and in law ld. CIT (A) has erred in not appreciating the fact that the 2 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
assessee had filed the return in response to notice issued u/s 148 and attended the proceedings. The ld. CIT (A) has not taken into consideration the provisions of section 292BB as the provision was effective from 01.04.2008 and the assessment in case of assessee was completed on 24.03.2015 i.e. after more than six years of insertion of the provision.
3. Whether on the facts and in the circumstances of the case and in law ld. CIT (A) has erred in not appreciating the fact that the notice issued u/s 148 was also received by ld. A/R of the assessee and the ld. A/R has attended the proceedings.
4. Whether on the facts and in the circumstances of the case and in law ld. CIT (A) has erred in not appreciating the case laws narrated in remand report in support of assessment order and in favour of revenue."
2. The brief facts of the case are that M/s. Mahla Real Estate Pvt. Ltd. filed its return of income on 15.11.2007 declaring loss of Rs. 5,22,052/-. Subsequently a notice under section 148 of the IT Act was issued to the assessee on 14.03.2014 and the assessment order under section 147/143(3) of the Act was passed on 24.03.2015 determining total income at Rs. 3,64,16,430/-.
3. Aggrieved by the order of the AO, assessee filed appeal before the ld. CIT (A) and the ld. CIT (A) during the course of hearing noted that vide order dated 20th July, 2015 the assessee company was dissolved by the Registrar of Companies, Rajasthan (ROC) and its name has been struck off from the Register by the ROC.
Since the assessee company was not in existence on the date of passing of the order by ld. CIT (A), therefore, the order was passed by ld. CIT (A) in the name of M/s.
Mahla Real Estate Pvt. Ltd. (since dissolved) through its Director Shri Aman Gupta and Shri S.N. Gupta. The ld. CIT (A) had allowed the appeal filed by the assessee 3 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
by holding that the impugned assessment order passed by the AO was without jurisdiction and bad in law and thus quashed the same.
4. Aggrieved by the order of the ld. CIT (A), the revenue has filed the appeal before us on the ground mentioned herein above. Ground nos. 1 to 4 raised by the revenue are inter-related and inter-connected and relates to challenging the order of the ld. CIT (A) in quashing the order of assessment passed by the AO.
5. The ld. D/R appearing on behalf of the revenue submitted before us that the ld. CIT (A) erred in quashing the assessment order only on the ground that notice issued u/s 148 of the IT Act was not served upon the assessee which is factually incorrect. It was further submitted that notice issued under section 148 was received by one Shri Chandan on the direction of Shri Aman Gupta, the Director of the assessee company. It was further submitted that the ld. CIT (A) has not appreciated the fact that the assessee has filed the return in response to notice under section 148 and attended the proceedings. As per the ld. D/R, the ld. CIT (A) has totally ignored the fact and has not taken into consideration the provisions of section 292BB as the provision was effective from 01.04.2008 and the assessment in case of the assessee was completed on 24.03.2015 i.e. after more than 6 years of insertion of the provision. It was also submitted that apart from the above, the notice issued under section 148 was also received by the A/R of the assessee and thus the A/R also attended the proceedings and in those circumstances it was not fair on the part of the ld. CIT (A) to quash the order of assessment prepared by the AO and therefore, relying upon the order passed by the AO.
4 ITA No. 465/JP/2017M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
6. On the other hand, the ld. A/R reiterated the same arguments as were raised by him before the ld. CIT (A) and the same are contained in para 3.1.1 of the order of ld. CIT (A) which are reproduced herein in below :-
"3.1.1 Submission made by the appellant In this case during the course of assessment proceedings the assessee submitted a written reply on 09.03.2014 challenging the service of notice u/s 148 of the Income Tax Act, 1961. The Learned Assessing Officer did not reply. A copy of letter dated 09.03.2014 is available on paper book page no 1 to 2. The case of the assessee is that no valid service was made of notice u/s 143. Therefore the entire proceeding are ab-initio void. It is further submitted that since the ser,fice of notice u/s 148 was challenged during the course of assessment proceedings, hence the provisions of section 29088 are of no help. It is the case of the assessee that notice u/s 148 was not served upon the assessee. The entire facts are discussed below. The assessment framed by the Learned Assessing Officer deserves to/ be quashed.
1. Service of notice u/s 148 not valid: -
(i) Chandan: -
In the assessment order the Learned Assessing Officer has dealt the issue of service of notice in para 4.1. The Learned Assessing Officer has observed as under: -
"The first contention of the assessee that the notice u/s 148 has not been served upon the assessee is not factually correct. As the company was not found traceable at the address given in the return of income filed on 22.11.2007, it was gathered from the market enquiry that the assessee company is sister concern of M/s Durga Motor Company, M.l Road, Jaipur, therefore, one copy of notice was got served at M/s Durga Motor Company by the notice server."
In the above regard it is submitted that the Learned Assessing Officer is wrong in observing that the company was not traceable at given address. It is submitted that since the formation of company and to its closure the address of the company was one and the same i.e. Mahla 5 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
Real Estate Private Limited, 12-13, Patel Colony, Laxmi Path, Sardar Patel Marg, Jaipur-302001, Rajasthan. The assessee is filing a copy of letter dated 20.07.2015 from the Registrar of the Company to the above address. The same is available on paper book page no 3 to 5. In view of this the Learned Assessing Officer is wrong is stating that the company was not traceable at the given address.
The Learned Assessing Officer has observed that in para 4.1(a) that a copy of the notice was served at M/s Durga Motor Company by the notice server. The same was served upon Shri Chandan on 18.03.04 (correct date should have been 18.03.2014). The Learned Assessing Officer has observed that Durga Motor any is a sister concern of the assessee. In this regard the moot point is whether the service made upon Shri Chandan is valid. It is submitted that M/s Durga Motor company is a proprietary concern of Smt. Radhika Gupta who is not a director in the company. Further Shri Chandan was not an employee of the assessee. He was a part time employee for purposes of cleaning and serving tea-water etc with M/s Durga Motor Company and not with assessee. He did not know English. Further he was not authorized to receive any notice from any department even of M/s Durga Motor Company, leave aside of the assessee. Any service of notice upon Shri Chandan is not valid in any way. An affidavit of Shri Chandan is available on paper book page no. 6 wherein he has corroborated these facts. Further Shri Chandan did not bring to the notice of the assessee, receipt of any such notice. In these circumstances service of notice upon a part time employee of a different concern is not valid.
It is further submitted that in the case of company service of notice has to be made in accordance with the provision of section 282(I)(b) of the Income Tax Act, 1961 which state that "service has to be made in such manner as provided under the Code of Civil Procedure, 1908 (5 of 1908) for the purposes of service notice".
It is submitted that it is settled position of law that when service is effected by notice server of the department in such case it is for the department to prove that notice has been served in accordance with provisions of order V of the Code of Civil Procedure, particularly rules 16 to 20 thereof In support the following case laws are quoted: -
(i) CIT vs. Mai Chanri 28 /TR 684 (Cal;
(ii) (Ii) Saha Vs. CIT 27 ITR 231 (Cal) 6 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
In the case of the company the notice has to be served either upon to the assessee i.e. the Directors or upon the Principal Officer or any person duly authorized by the company. In this case none of these conditions are fulfilled. Notice has not been served on directors or on the Principal Officer of the company. Shri Chandan was not an authorized person on behalf of the company to receive such notice. An affidavit to this effect of Shri Aman Gupta director of the company is available on paper book page no. 7 to 8. It is submitted that considering these facts the service of notice upon Shri Chandan is not a valid service. The Learned Assessing Officer could not assume jurisdiction on the basis of such invalid service of notice u/s 148. The assessment proceedings are therefore ab-initio void.
Further as per Rule 6 of Order Ill, it is evident that written authority to receive notice is necessary either by way of special or general power given in this regard. The person should have been specifically empowered to receive notice, From the Rules it is evident that the mandate of Legislature is that as far as possible the service of summons should be effected .on the person named in the notice and, if it is not possible, then same should be effected on the person who is duly vested with the authority to receive such notice by the person named in the summon. The Legislature has further provided that in order to ensure proper service of notice acknowledgement of the person served should be obtained and person serving should also record necessary details so as to avoid any dispute in this regard. It is settled law that it is the duty of the revenue to establish that the service of an order or a notice was made on the assessee himself or on somebody duly authorized by him in that behalf. When the assessee pleads that he has not been properly served with any notice, it is for the Department to place the relevant material to substantiate the plea that the assessee was served. In the present case, no material is on record to show that the person to whom the notice is alleged to have been served was specifically authorized to receive notice. In Paparruna Rao v. Revenue Divisional Officer AIR1918 Mad. 589, a Division Bench of Madras High court while dealing with the manner of service contemplated by section 45(2) of the Land Acquisition Act, which also attracts the provisions of the Code of Civil Procedure, in 1-hp, matter of service of notices, expressed the view that unless a person is appointed as agent o accept service of processes by an instrument in writing signed by the principal, the service on him cannot be said to be valid. Thb view taken in that case was that an oral authority is not sufficient but there should be a written authority. Similar view has been taken in CIT V. Baxirarn Rodmal [1934] 2 1TR 438 (Nag.), CIT v. Dey Brothers [1935] 3 7 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
ITR 213 (Rang.) and C.N. Nataraj v. Fifth ITO [19651 56 1TR 250 (Mys.). In CIT v. Baxirarn Rodmal [194] 2 ITR 438 (Nag.) It has been held that the mere fact that a person had accepted notices on behalf of the assessee on previous occasions and appeared for the assessee would not constitute him an agent on whom a notice or requisition under the Act would be validly served nor would any statement made by him bind the assessee. In C.N. Nataraj v. Fifth ITO ([1965] 56 ITR 250, the Mysore High Court took the view that the service of notice under section 148 on a clerk of the assessee's father who was neither an agent of the assessee nor authorized by him to accept notices on his behalf was not valid and, therefore, the assessee would not be assessed under section 147 in pursuance of such service of notice . Thus, in order tha't there should be a valid service, the person on whom service is effected must have valid authorization given to him in writing to receive such notice and mere implied authority will not be enough. It was fundamental requirement to get the notice served on the assessee before proceeding to complete the reassessment and as it is lacking, this jurisdictional defect cannot be cured and thus assessment is liable to be quashed on this point. Notice under section 148 is a jurisdictional notice. Therefore, invalid service of notice under section 148 cannot be said to be a procedural defect and it cannot b cured by the participation of the assessee in the re-assessment proceedings. Since the assessee raised this issue and questioned the service of notice during the course of the assessment proceedings hence the section 292BB is of no help. This provision is applicable only in the facts and circumstances when the assessee has not raised the issue of service and has not questioned the same during the course of assessment proceedings.
The appellant company relies upon the following decisions for the proposition that proper service of notice u/s 148 is mandatory for assuming valid jurisdiction to re-assess the escaped income.
(i) CIT vs. Vardhman Estate P. Ltd. 287 ITR 368 (Del)
(ii) CIT vs. Bhan Textiles P. Ltd. 287 ITR 370 (Del)
(iii) CIT vs. Lunar Diamonds Ltd. 281 ITR 1 (Del)
(iv) Venkat Naicken Trust v. ITRO 242 1TR 141 (Mad)
(v) Sudev Industries Ltd. v. ITO 98 TTJ 97 (Del)
(vi) Hind Book House v. ITO 92 ITD 415 (Del)
(vii) Dulli Chand Laxmi Narain v. AC'IT 89 ITD 426 (Del)
(viii) Dina Nath v. CIT 204 ITR 667 (J&K)
(ix) Jayanthi Talkies Distributors v. CIT 120 ITR 576 (Mad)"
Conclusion: -8 ITA No. 465/JP/2017
M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
It is submitted that in view of the aforesaid discussion service upon Shri Chandan is not valid service. He was not authorized to receive notice on the behalf of the company. Simply he was a peon in the M/s Durga Motor Company does not empower him to receive notices of the company. Similarly his receiving of other notices subsequently does not validate the receipt of notice u/s 148. His illiteracy is further proved by the fact that he has signed the notice placing date as 18.03.2004 whereas the correct date should have been 18.03.2014. In these circumstances the assessment framed deserves to be quashed. (II) Service upon Shri Anand Sharma (CA) :-
Since the Learned Assessing Officer himself was doubtful about the validity of service of notice issued u/s 148 upon Shri Chandan, so another copy of the notice was also served upon Shri Anand Sharma CA who is working with S.L. Poddar & Co. However it is submitted that despite specific request made by the assessee under letter dated 14.12.2015 to furnish copy of notice u/s 148 disclosing the service upon Shri Anand Sharma, no copy of notice u/s 148 has been furnished which discloses the signature of Shri Anand Sharma CA. In any case the assessee submits that Shri Anand Sharma was also not competent nor authorized to receive notice u/s 148.
It is with the issue of notice u/s 148 and service thereof that proceeding of assessment stand initiated. It is subsequent to this that a CA is appointed for handling the assessment proceedings. Thus a CA cannot come into picture before the assessment proceedings are initiated. The assessee cannot imagine or visualize issuance of notice u/s 148, therefore no question arises of CA being authorized to receive notice u/s
148. Shri Anand Sharma was not authorized for receiving notices on behalf of the assessee, therefore any service upon him is invalid. The assessee further quotes the following decision in support: -
(x) Singar Gutkha vs. Deputy Commissioner of Income Tax (2011) 138 TTJ 318 (Lucknow) Service of notice under s. 148 on a chartered accountant who was not empowered to receive such notice on behalf of the assessee company or on another person who was not authorized to receive a notice was not a valid service of notice on the assessee, more so when it was not shown that the assessee was keeping out of way for the purpose of avoiding service of notice or that there was any other reason that the 9 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
notice could not be served on the assessee in the ordinary way and, therefore, assessment completed pursuant to said notice was bad in law.
(xi) Ariun Singh vs. ADIT (Inv.) [20001 246 1TR 363 (MP) Service of notice on the counsel of the petitioners and service through IT Inspector is not in consonance with the requirement of s. 282.
(xii) Assessment completed without first deciding the objection: -
It is further submitted that it is settled position of law upto the stage of the Apex Court that any objection raised regarding the issue/service of notice u/s 148, reasons thereof, these have to be first disposed by the Learned Assessing Officer before proceeding to complete`the assessment. In this case the assessee raised the issue of service of notice during the course of assessment proceedings vide letter dated 09.03.2014 cited supra. Vide this letter the assessee had challenged the service of notice and had demanded copies of notice u/s 148 alleged to have been served. The Learned Assessing Officer did not think it proper either to supply the copy of notice u/s 148 or to dispose of the objections of the assessee. In view of this the assessment proceedings are vitiated. The following case laws are quoted in support: -
(I) GENERAL MOTORS INDIA (P). LTD. vs. DEPUTY COMMISSIONER OF INCOME TAX (2013) 354 ITR 0244 [Gull Writ petition is maintainable if AO has not passed order deciding objection filed by assessee u/s 148 or order deciding an objection u/s 148 has not been communicated to assessee or if objection u/s 148 has been rejected without there being any tangible material available to form an opinion that there is escapement of income--AO is mandated to decide objection to the notice u/s 148 and supply or communicate it to assessee--Not open to AO to decide objection to notice u/s 148 by a composite assessment order--AO required to, first decide assessee's objection and serve a copy of order on assessee and after giving some reasonable time to the assessee for challenging his order, it was open to him to pass an assessment order--Same was not done by AO in instant case-Order on objection to the notice u/s 148 and the assessment order passed quashed--Assessee's writ petition allowed.
(ii) COMMISSIONER OF INCOME TAX (NOIDA) vs. DEEPAK GUPTA (2014) 100 DTR ((ALL)) 10 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
We agree with the reasoning given by ITAT that it was mandatory for the A.O. to decide objections and that the exercise of discretion on the objections would in any case not validate the notice under Section 147/148 of the Income Tax Act.
(II) GKN DRIVESHAFTS (INDIA) LTD. vs. INCOME TAX OFFICER & ORS.
259 ITR 0019 Notice under ss. 143(2) and 148--Writ petition challenging the validity of notices--Reasons for issuing the impugned notices have been disclosed--Petitioner can raise objections before the AO--AO has to dispose of the objections, if filed by the petitioner, by passing a speaking order before proceeding with the assessment--Writ petition right dismissed as premature The ratio of aforesaid decisions is fully applicable to the facts of the case. The objections raised by the assessee remained unattended by the Learned Assessing Officer. The assessee had challenged the very root of the assessment proceedings. The service of notice u/s 148 was challenged. The Learned Assessing Officer has disposed this objection in the composite order passed by him on 24.0.2015 which is an assessment order also. In this assessment order in para 4 he has dealt with the objections raised by the assessee which should have been disclosed off earlier before completion of assessment.
(IV) Notice u/s 148 issued without application of mind: -
It is further submitted that in this case the Learned Assessing Officer erred in issuing notice u/s 148 mechanically without application of mind. The Learned Assessing Officer has mentioned in the assessment order that soon on receipt of information DDIT (Inv.)-l1 that Shri Hitesh Garg had deposed that land was purchased for Rs. 4,82,13,900/- instead of Rs. 1,25,00,000/- as shown in the sale deed, decision was taken for issuing of notice u/s 148. It is simply on the basis of this information that the Learned Assessing Officer jumped to the conclusion and formed a belief that income escaped assessment. No enquiry was caused. In these circumstances it is a case where the Learned Assessing Officer has acted mechanically without application of mind. The issuance of notice u/s 148 is therefore invalid. What was required was that the Learned Assessing Officer should have put the facts received from DDIT Wing to verification and thereafter should have accordingly reached to be a conclusion. In this case this has not been done. Hence the assessment proceeding deserves to be quashed. A copy of the reasons recorded for 11 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
initiating proceedings Li/S 148 is available on paper book page no. 11. The following case laws are quoted in support: -
(i) JOINT COMMISSIONER OF INCOME TAX & ORS. vs. GEORGE WILLIAMSON (ASSAM) LTD. 258 ITR 126 (Gau) Reassessment--Full and true disclosure--Reason to believe--For exercising powers under s. 147 the assessing authority must have reason to believe that any income chargeable to tax has escaped assessment-Reason given by the assessing authority must have a rational connection or relevance for formation of that belief--Except for a letter written by a CIT to another CIT, the assessing authority had no other material before him for the belief that the alleged payments were in fact not made by the assessee-company and that the amounts paid through cheques were returned back in cash after routing it through four or five bank accounts--Thus, assessing authority could not reach a conclusion simply on the basis of the statement of BS who had no business transactions with assessee that the transactions were bogus and the amount was returned back--No link between facts found and the satisfaction arrived at by the assessing authority-- Assessee at the time of his assessment has presented before the assessing authority all the material and relevant facts--Assessing authority while assessing the income of the assessee has scrutinized those facts and made the order of assessment--Impugned notice issued to the assessee and further proceedings initiated under s. 147/148 therefore liable to be quashed.
(II) SIGNATURE HOTELS (P) LTD. vs. INCOME TAX OFFICER & ANR. HIGH COURT OF DELHI (2011) 3381TR 51 Information received by the AO from the Director of IT (Inv.) that the assessee had introduced unaccounted money by way of an accommodation entry being extremely scanty and vague cannot be regarded as a material or evidence that prima facie establishes escapement of income, more so as the AO did not apply his own mind to the information to arrive at the belief as to whether or not any income had escaped assessment; proceedings under s. 147 are quashed.
(II) CIT Vs. SFIL Stock Broking Ltd. (2010) 41 DTR 98 (Del) Mere information received from the Dy. Director of IT (Inv,) and directions of the said officer and the Addl. CIT to initiate proceedings under s, 147 cannot constitute valid reasons for initiating reassessment proceedings in the absence of anything to show that the AO has 12 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
independently applied his mind to arrive at a belief that income has escaped assessment, (IV) SARTHAK SECURITIES CO. (P) LTD. vs. INCOME TAX OFFICER (2010) 329 ITR 110 HIGH COURT OF DELHI Where the identity of the companies whO had invested in the shares of petitioner-company was not disputed and neither the reasons in the initial notice nor the communication providing reasons remotely indicated independent application of mind by AO, reassessment proceedings were unwarranted and notice issued under s. 148 was liable to be quashed.
2. Assessment completed in violation of principles of natural justice: -
It is submitted that the case of the assessee has been reopened on the basis of an agreement dated 27.05.2006 and also on the basis of statement of Shri Hitesh Kumar Garg recorded on 24.08.2006. The position being so assessee had requested during the course of assessment proceedings vide letter dated 09.03.2014 that a copy of the agreement found and seized and a copy of the statement recorded of Shri Hitesh Garg be supplied. The Learned Assessing Officer did not do so and completed the assessment. The assessee was denied opportunity to defend himself. Cross examination of Shri Hitesh Garg was not allowed. Copy of agreement dated 09.03.2014 found during the course of survey at the premises of Shri Hitesh Garg was also not supplied. It is settled position of law that the Learned Assessing Officer is precluded is using material gathered at the back of the assessee without providing a fair and reasonable opportunity to the assessee to defend himself This renders the assessment proceedings as null and void. The following case laws are quoted in support: -
(I) The Apex Court has observed that not allowing cross examination is a serious flaw and makes the order nullity. Andman Timber Ind. Vs. Commission of Central Excise (2015) 281 CTR 211 (SO. "not allowing the assessee to cross examine the witness by the adjudicating authority though the Statements of those witnesses were made the basis of the impugned order, is a serious flaw which makes the order nullity in as much as it amounted to violation of principle of natural justice because of which the assessee was adversely affected.
(ii) COMMISSIONER OF INCOME TAX vs. BIJU PATNAIK HIGH COURT OF ORISSA 190 ITR 0396 Although answers can be recorded either in favour of the Department or against it, ultimately each answer would again become inconclusive on 13 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
account of the final findings of fact of the Tribunal that ITO has not given reasonable opportunity to the assessee to rebut the statements recorded ex parte under s. 131 of the Act and to furnish explanation to some of the materials. It is true that Tribunal has not given due weight to the relevant and admissible evidence while recording the findings of fact. However, the findings of the Tribunal on such fact are also vulnerable as they may require reconsideration. If answers in respect of each of the questions are indicated in the absence of reasonable opportunity being afforded to the assessee, they would be of academic interest inasmuch as the answers against the assessee would become vulnerable on account of the need to undo the absence or reasonable opportunity. A clear and conclusive finding binding cn the parties can be given only after reasonable opportunity is given to the assessee as found by the Tribunal. No answer should be given in advisory jurisdiction which would not finally decide the issue since final finding can be arrived at only after giving reasonable opportunity to the assessee and explanation given by the assessee would have material bearing on the finding. It is necessary that the Assessing Officer gives opportunity to the assessee. Tribunal has not considered the evidence in its proper perspective while rendering the decision in appeal and accordingly, the findings of the Tribunal are vitiated in law. As the final fact-finding forum, the Tribunal has to consider the same again. Since Tribunal has recorded a finding that reasonable opportunity has not been given, to the assessee to give rebuttal evidence and explanation, this can effectively be done by the Assessing Officer. The reference applications are disposed of as above leaving it to the Tribunal to pass consequential orders.
(iii) PRAKASH CHAND NAHTA. vs. COMMISSIONER OF INCOME TAX (HIGH COURT OF MADHYA PRADESH) (2008) 301 ITR 0134:
Assessment--Validity--Opportunity of being heard vis-a-vis statements of third party--Unaccounted silver ornaments and utensils were found and seized during the search at the assessee's premises--Assessee explained that the said silver items were purchased from one R & Co.-- AO made addition to the income of the assessee after recording the statement of M, proprietor of R & Co., behind the back of the assessee-- Not justified--AO has heavily relied upon the statement of M and has ignored the subsequerit affidavit filed by M which is in variance of his original statement--Since the statement of M was used against the assessee and an affidavit was filed controverting the same, it was obligatory on the part of the AO to allow the prayer of assessee for cross-examination of M--AO having not summoned M under s. 131 in 14 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
spite of the request of the assessee, evidence of M could not have been used against the assessee--Therefore, the assessment order is vitiated (IV) HEIRS AND LRS OF LATE LAXMANBHAI S. PATEL vs. COMMISSIONER OF INCOME TAX (HIGH COURT OF GUJARAT ) (2010) 327 ITR 0290 Opportunity of being heard--During search of one R, key of bank locker along with two packets containing six promissory notes were recovered--Out of those six promissory notes, one was in the sum of Rs. 8,78,358 executed by one K in the capacity of partner of firm DCI--
In his statement recorded during search, R stated that the key of locker and the two envelopes were handed over to him by the assessee--K also admitted in his statement recorded on the same day at 2.00 AM midnight that he had executed the pronote and signed it on behalf of DCI after obtaining a sum of Rs. 8,78,358--Later, K filed an affidavit that his statement was recorded at late hours in the night under coercion and pressure-Subsequently, K along with two other partners of DCI, made a voluntary disclosure of a sum of Rs. 11 lacs including the amount of Rs. 8,78,358 and same was assessed in the hands of the three partners--
Relying on the statement of R and the retracted statement of K, AO made addition of Rs. 8,78,358 under s. 68 in the hands of assessee also and the same was confirmed by CIT(A) and Tribunal--Not justified-- Apparently, there was a violation of principles of natural justice as the statement of one of the important witnesses, namely, R on which heavy reliance was placed by the AO is neither referred to in the assessment order nor copy thereof was given to the assessee nor the assessee was given an opportunity of cross-examining the said R--Authorities could not be absolved from doing so on the ground that the facts stated by R were admitted by the assessee--K had not only retracted his earlier statement but also made a voluntary disclosure, along with two other partners of DCI, in the sum of Rs. 11 lacs which included the amount of pronote of Rs. 8,78,358--Legal effect of the statement recorded behind the back of the assessee and without furnishing the copy thereof to the assessee or without giving an opportunity of cross-examination, is that if the addition is made, the same is required to be deleted on the ground of violation of the principles of natural justice--Orders of all the three authorities set aside and addition deleted.
(v) COMMISSIONER OF INCOME TAX vs. EASTERN COMMERCIAL ENTERPRISES (HIGH COURT OF CALCUTTA) 210 ITR 0103 15 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
Assessee showing a gross profit rate of 5.2%--Revenue being of the opinion that assessee inflated purchases, called in evidence one S from whom assessee made purchases and applied G.P. rate of 30%--S denied having made any sales to assessee in the face of earlier affidavits confirming such sales--Statement of S not furnished to assessee nor opportunity to cross-examine him given--Cross examination is sine qua non of the due process of taking evidence and no adverse inference can be drawn against a party unless that party is put on notice of the case made out against him-- Matter remanded for cross-examination of S with opportunity to assessee to furnish evidence to rebut the evidence of S. (VI) KALRA GLUE FACTORY, vs. SALES TAX TRIBUNAL & ORS. (SUPREME COURT OF INDIA) 167 ITR 0498 Statement which was not tested by cross examination is not good evidence. Further submission In continuation of our earlier submissions in the matter of invalid service of notice u/s 148 of the Income Tax Act, 1961 it is further submitted and explained here under the circumstances under which the assessee was forced to file income tax return despite no valid service of notice u/s 148 of the Income Tax Act, 1961 -
1. It is submitted that the department issued notice u/s 148 on 14.03.2014.
Further letter no. 252 dated 20.05.2014 was issued for purposes of assessment. Again so show cause notice for completion of assessment u/s 144 was issued under letter no. 370 dated 26.06.2014 along with notice u's 142(1). Further as a matter of final opportunity letter no. 2647 was issued on 02.03.2015 threatening the assessee for completion of assessment u/s 144 on total income of Rs. 3,57,13,900/-. The date of hearing was filed on 09.03.2015. Copies of all these notices are enclosed herewith.
2. On the purported last date of hearing i.e. 09.03.2015 assessee submitted a detailed submission agitating the service of notice u/s 148 of the Income Tax Act, 1961. Thus it would be seen till the last date of hearing assessee did not make any compliance of notice u/s 148 as there was no valid service of it.
3. It was on account of threatening by the Learned Assessing Officer on the date of hearing i.e. on 09.03.2015 that assessee in protest filed return on 14.03.2015 declaring Nil income. Thus it would be seen that assessee did not file the return voluntarily in compliance to any notice u/s 148 as there was no valid service of notice u/s 148. It may also be 16 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
appreciated that before filing the return on 14.03.2015 the assessee had objected to the service of notice u/s 148 of the Income Tax Act, 1961.
4. It is submitted that in the notice issued u/s 148 on 14.03.2014 the Learned Assessing Officer had granted time of 30 days only for filing return of income. Any return filed thereafter is a nullity in the law of law. It is further submitted that it is settled position of law that all subsequent and follow up proceedings which originate in consequence to an invalid service of notice u/s 148 are sou-moto and ab-initio invalid. Therefore no cognizance should be taken of return filed on 14.03.2015 and other proceedings when the assessee well in time objected and challenged the validity of service of notice u/s 148.
5. Soon after filing return of income on 14.03.2015 the assessee again flashed reply stating that there was no valid service of notice u/s 148. It is submitted that the Learned Assessing Officer never replied to the objection of the assessee regarding validity of service of notice u/s 148. It is only in the assessment order that he has discussed the issue.
6. In view of the aforesaid circumstances it is submitted that filing of return by the assessee is not in compliance of notice u/s 148 nor it validates the assessment proceedings which originated from the invalid service of notice u/s 148. The return was filed in protest and deserves to be disregarded. The Court have held in various decisions which have been cited in our earlier submissions that even participation by the assessee in assessment proceedings would not be of any avail whcrc the notice u/s 118 was not served validly.
7 Similar finding has also been given by the Hon'ble High Court Delhi in the case of CIT vs. Chetan Gupta dated 15.12.2015 in ITA No. 72 of 2014 that "reassessment proceedings finalized by an Assessing Officer without effecting proper service of notice on the assessee under section 148(1) of the Act are invalid and liable to be quashed." Copy of order is encoded"
He has relied on the order passed by the ld. CIT (Appeals).
7. We have heard the ld. Counsels of both the sides and have also perused the material available on record, orders passed by the Revenue authorities as well as the judgments cited by the respective parties. We have noticed from the record that the assessee during the course of appellate proceedings before ld. CIT (A) had also filed 17 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
additional evidences and made submissions and the said additional evidences along with the written submissions were forwarded by the ld.CIT (A) to the AO for obtaining his comments by admitting the additional evidences as the jurisdiction of the AO was challenged by the assessee and it was specifically claimed by the assessee that the notice issued under section 148 of the Act was never served upon it. The remand report submitted by the AO has been given in detail at page 15 to 26 of the order of the ld. CIT (A). After obtaining the remand report wherein it was mentioned by the AO that the service of the notice was effected on Shri Chandan and also letter dated 20.05.2014 was served upon Shri S.L. Poddar, Senior Advocate on 29.05.2014 and show cause notices dated 26.06.2014 was also served on Shri Dinesh Kumar on 27,.06.2014 and notice under sec. 142(1) dated 09,02.2015 was served upon Shri Anup Gupta on 10.02.2015 and show cause notice under sec. 144 along with the notice under sec. 142(1) was served upon Shri Chandan on 04.03.2015 and apart from that notice under section 142(1) dated 13.03.2015 was served upon Shri S.L. Poddar, Senior Advocate on 13.03.2015.
8. On these factual findings, assessee had also filed rejoinder which contained at pages 26 to 36 of the order of the ld. CIT (A) and the same is reproduced below :-
"Rejoinder to the remand report:
1. Introduction: -
Before submitting para wise comments on the remand report of the Learned Assessing Officer it is the submission of the assessee that valid service of notice u/s 148 is mandatory before assuming jurisdiction. It is settled proposition of law that any illegality or any infirmity in complying 18 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
with the provisions of section 282 resulting in the non service of the notice divests the Learned Assessing Officer from jurisdiction to assess or reassess the assessee. Further such non compliance of the provisions of section 282 is fatal to the legality of the assessment/re-assessment and renders it invalid. Notice u/s 148 has to be mandatorily served in accordance with section 282(1), read with order V, rule 12 CPC and Order Ill rule 6 CPC. Merely that assessee participated in assessment proceedings will not constitute a waiver of requirement of effecting proper service of notice on the assessee u/s 148 of the Income Tax Act, 1961.
2. Uncontroverted/undisputed facts of the case: -
It is submitted that the detailed submission made by the assessee earlier before your honour have remained by and large unconverted. The remand report submitted by the Learned Assessing Officer is an exercise in nullity . The learned Assessing Officer has not been able to adduce any fact or evidence to controvert the submissions made by the assessee. The following major facts submitted before your honour have remained uncontroverted: -
(i) Notice was not served at the registered address of the assessee.
It is submitted that the assessee company till the time of closure was having only one address i.e. 12-13, Patel Colony, Sardar Patel Marg, Jaipur-302001, Rajasthan. As a matter of documentary evidence the assessee filed a copy of letter dated 20.07.2015 from the registrar of company. This fact has not been commented upon at all and thus has remained uncontroverted.
(ii) Affidavit of Shri Chandan is uncontroverted : -
The claim of the Learned Assessing Officer that there was valid service of notice uls 148 upon Shri Chandan was contested by the assessee by filing an affidavit of Shri Chandan. In this affidavit Shri Chandan has deposed that he is a part time employee in Durga Motor Company as a peon and was not authorized to receive any notice of the assessee company. The Learned Assessing Officer has not considered it proper to examine Shri Chandan in respect of averment in the affidavit and thus the facts narrated in the affidavit have remained undisputed and unchallenged. Therefore service upon Shri Chandan is invalid. He was not connected in any way with the assessee company. His receiving of any other notice earlier or subsequently does not make the service of notice u/s 148 valid.
(iii) Affidavit of Shri Aman Gupta is uncontroverted : -19 ITA No. 465/JP/2017
M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
In his affidavit furnished Shri Aman Gupta Director of the company has stated that Shri Chandan was not authorized to receive notices of the company and he never informed of having received the notice u/s 148. The Learned Assessing Officer has not deemed it appropriate to examine Shri Aman Gupta regarding his averment in the affidavit. Therefore the facts narrated by him in the affidavit remained uncontroverted. In his report the Learned Assessing Officer has mentioned that before serving notice Shri Chandan made a telephonic talk with Shri Aman Gupta and thereafter notice was served upon him. The story is just a made believe and is unsupported by any evidence. Further it is settled position of law that oral authority is not sufficient and the law requires a written authority for receiving notices. In Paparruna Rao v. Revenue Divisional Officer AIR 1918 Mad. 589, a Division Bench of Madras High court while dealing with the manner of service contemplated by section 45(2) of the Land Acquisition Act, which also attracts the provisions of the Code of Civil Procedure, in 1- hp, matter of service of notices, expressed the view that unless a person is appointed as agent o accept service of processes by an instrument in writing signed by the principal, the service on him cannot be said to be valid. The view taken in that case was that an oral authority is not sufficient but there should be a written authority. Similar view has been taken in CIT V. Baxirarn Rodmal [1934] 2 ITR 438 (Nag.), CIT v. Dey Brothers [1935] 3 1TR 213 (Rang.) and C.N. Nataraj v. Fifth ITO [1965] 56 ITR 250 (Mys.). In CIT v. Baxirarn Rodmal [194] 2 ITR 438 (Nag.) It has been held that the mere fact that a person had accepted notices on behalf of the assessee on previous occasions and appeared for the assessee would not constitute him an agent on whom a notice or requisition under the Act would be validly served nor would any statement made by him bind the assessee. In C.N. Nataraj v. Fifth ITO ([1965] 56 ITR 250, the Mysore High Court took the view that the service of notice under section 148 on a clerk of the assessee's father who was neither an agent of the assessee nor authorized by him to accept notices on his behalf was not valid and, therefore, the assessee would not be assessed under section 147 in pursuance of such service of notice . Thus, in order that there should be a valid service, the person on whom service is effected must have valid authorization given to him in writing to receive such notice and mere implied authority will not be enough.
(iv) Service of notice u/s - i48 objected before completion of assessment: -
It is submitted that the assessment in this case is completed on 24.03.2015 and the assessee objected to the service of notice u/s 148 20 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
vide letter dated 09.03.2014. The Learned Assessing -Officer had sufficient time to dispose the objection of the assessee, but the same was not done. A copy of letter dated 09.03.2014 stands submitted in the papers submitted with the earlier submission. The Learned Assessing Officer has alleged that the assessee intentionally raised the objection towards to last of the assessment proceedings. This has no merit. It is submitted that in this case the department has not allowed sufficient time to the assessee. This would be clear from the issue of following notices: -
(a) Notice u/s 148 issued on 14.03.2014
(b) Reminder of filing of return issued on 20.05.2014
(c) Show cause notice for completion of assessment u/s 144 issued on 26.06.2014.
(d) The above letters were issued by the then Learned Assessing Officer Shri Surendra Yaday. He never issued any notice u/s 142(1). Thereafter there was change of incumbency and Shri Pradeep Sharma took over as ITO, Ward - 2(2), Jaipur. He issued notices as under: -
i) Notice u/s 142(1) on 09.02.2015
ii) Notice u/s 142(1) on 02.03.2015 along with letter asking to show cause why assessment should not be completed u/s 144.
The makes it clear that hardly two effective opportunities were granted to the assessee within a small period of one month and in view of this the Learned Assessing Officer cannot allege that assessee intentionally delayed in filing the objection. In fact not a single notice was served upon the assessee except the one dated 09.02.2015. It was only and only after this notice that assessee came to know about the proceedings and approached his counsel and thereafter filed the objection under letter dated 09.03.2015. Thus the assessee cannot be alleged of any tactic delay in filing the objection. In fact the reverse is true the department after issuing notice u/s 148 on 14.03.2014 slept for a long period and woke up only on 09.02.2015 and issued notice on this date.
It is submitted that in view of the objection of the assessee the Learned Assessing Officer was required to dispose of the same before completion of assessment in view of the decision of the Supreme Court in the case of GKN DRIVESHAFTS (INDIA) LTD. vs. INCOME TAX OFFICER & ORS. 259 ITR 0019. The Learned Assessing Officer has not done so. He has disposed the objection of the assessee in the assessment order itself. The same is not in order and is contrary to the decision of the Supreme Court. Further the assessee has already cited case law i.e. GENERAL MOTORS INDIA (P). LTD. vs. DEPUTY COMMISSIONER OF INCOME TAX 21 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
(2013) 354 ITR 0244 (Gui) where in it was held that it was not open to AO to decide objection to notice u/s 148 by a composite assessment order--AO required to, first decide Lisessee'S objection and serve a copy of order on assessee and after giving some reasonable time to the assessee for challenging his order, it was open to him to pass an assessment order--Same was not done by AO in instant case--Order on objection to the notice u/s 148 and the assessment 'Order passed quashed-- Assessee's writ petition allowed.
Therefore the order passed by the Learned Assessing Officer deserves to be quashed.
(v) No notice served upon Director or any authorized agent: - -
In the remand report submitted by the Learned Assessing Officer there is no claim by him that notice u/s 148 was served on any director or any agent authorized by the company. This fact being undisputed, the service of notice u/s 148 has correctly been challenged by the assessee. In the circumstances the assessment so completed is invalid.
It view of the above undisputed/uncontroverted facts the claim of the assessee is fully proved that there was no valid service of notice u/s 148 and therefore the Learned Assessing Officer had no jurisdiction for completing the assessment. The assessment so framed deserves to be knocked down.
PARAWISE COMMENTS ON THE REMAND REPORT: -
3. Rule 46(1) - additional evidence: -
The assessee submits humbly that once the Learned CIT(A) has called for a report from the Learned Assessing Officer on papers and submission made before him by the assessee, it automatically means that the Learned CIT(A) in his discretion has admitted the papers submitted by the assessee and it is only thereafter that on these papers comments of the Learned Assessing Officer have been called for
4. Papers submitted by the assessee go to the root of the case: -
It is further submitted that virtually no additional evidence has been furnished by the assessee. The assessee has furnished affidavit of Shri Chandan and of Shri Aman Gupta in support of the contention that there was no valid service of notice u/s 148. This issue was raised during the course of assessment proceedings. But the Learned Assessing Officer did not pay due regard to the contention of the 22 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
assessee and did not seek any additional evidence. In fact the Learned Assessing Officer did not take the issue of service of notice seriously. The notice u/s 148 were served in a very causal manner, A first upon one Shri Mukesh and then upon Shri Chandan and lastly upon Shri Anand Sharma. The service upon all thps4g. persons was I made one after another as the Assessing Officer had a lurking doubt in his mind regarding the validity of service.
The assessee has also produced a certificate of the Area Patwari as well as Vice Chairman Nagar Palika Mandal Bagru regarding the land is situated beyond 8 km from Municipal limit. This contention was also raised before the Learned Assessing Officer during the course of assessment proceedings.
Further it is submitted challenging the jurisdiction/ service of notice u/s 148 goes to the root of the matter and it is settled position of law that matters which go to root of the case can be raised at any stage. Therefore the Learned Assessing Officer has no ground to object to the submission of the aforesaid papers.
5. Case laws: -
In this regard the following case laws are quoted as under: -
(i) Electra (Jaipur) Pvt Ltd. vs. IAC 26 ITD 236 If evidence produced by assessee is genuine, reliable and proves assessee's case than assessee should not be denied opportunity of it being produced even if he first time produces same before appellate authority.
(iii) C/T Vs. Gani Bhai Wahab Bhai 232 ITR 900 (MP) There is no prohibition for taking additional evidence at the appellate stage, the only condition being that the Department should not be prejudiced and should be given reasonable opportunity to rebut this additional evidence. In this case, no such request was made by the representative of the Department whether they disputed this certificate or not. Therefore, there is no illegality committed by the Tribunal which accepted the certificate of 46 per cent of the yield. In this view of the matter, the additional evidence entertained by the Tribunal cannot be said to be bad.
(iii) Anmol Color India Pvt. Ltd. (2009) 121TTJ 269 (Jaipur ITAT) 23 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
The powers of the first appellant authority are very wide and co- terminus with those of the AO and what AO can do., he can do and what AO fails to do, that also he can do. The embargo put on his power under r. 46A(1) and (2) has also been loosened by sub-r. (4) which also empowers the CIT(A) to direct the production of any document, the examination of witness to enable him to dispose of the appeal. Thus the legislative intent is quite clear and the CIT(A) should not jump straightway to reject, if the appellant files some evidence before him under the pretence of r. 46A(1). The powers of the CIT(A) are also to be interpreted in the context of the amended law, wherein he is no more empowered to restore back any matter which was earlier under s. 251(I)(a) necessitating a compulsory admission of the evidence before him in the interest of justice. Therefore, in the present circumstances and facts of the case, the CIT(A) was not justified in not admitting the additional evidences which were necessary for the disposal of the case.
(iv) Shahrukh Khan Vs. Dv. CIT (2007) 13 SOT 61 (Mum) The assessee in an appeal against addition made by the Assessing Officer, filed additional evidence before the Commissioner (Appeals). The Commissioner (Appeals) called for a remand report on such evidence from the Assessing Officer and after going through remand report, concluded that sufficient opportunities were granted to the assessee and his case did not fall in any of exceptions available in sub-rule (1) of rule 46A. The Commissioner (Appeals), therefore, refused to admit additional evidence and confirmed the addition.
Held that in the instance case, though from the record it was not discernible whether permission to adduce additional evidence was granted by recording reasons in writing, but impliedly it was discernible that after filing the additional evidence, the commissioner (appeals) took steps provided in sub-rule (3) of rule 46A. So it gave an inference that the additional evidence sought to be produced by the assessee was a relevant material and the commissioner (Appeals) had entertained additional evidence and only thereafter sent it to the Assessing Officer under sub-rule (3) for verification. Thus, after calling of the remand report on merit as contemplated in sub-rule (3) of rule 46A, the commissioner (appeals) was precluded from using his discretion to refuse to admit the additional evidence. He could reject it was not sufficient or not proved but it was to be constructed that evidence had been taken on record."
24 ITA No. 465/JP/2017M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
(v) Aruna Jain Vs. Deputy Commissioner of Income Tax 21 SOT 218 It has been held by the ITAT, Delhi Bench that failing to produce evidence at first stage should not be held against the assessee unless the evidence is bogus.
(vi) Smt. Prabhavati S. Shah Vs. CIT 231 ITR 1 (Born.) Production of additional evidence - assessee taking loans from two creditors - ITO treating loans as income from undisclosed sources as summons could not be served on creditors -
Assessee wanting to prove genuineness of loan by relying on fact that amount borrowed and repaid by cheques. Assessee producing Photostat copies of cheques and certificate from Bank before AAC AAC refusing to admit additional evidence. AAC should have considered evidence produced by assessee regarding loan.
(i) B.L. Choudhary vs. CIT (1976) (Orissa) First appellate authority is vested with wide powers to admit additional papers.
6. Service of notice u/s 148 -
(A) Service on Shri Chandan -
It is submitted that Learned Assessing Officer has tried to justify the service of notice u/s 148 on the ground that Shri Chandan accepted the notice after telephonic talk with Shri Aman Gupta. Secondly Shri Chandan has received notices subsequently also. Thirdly that Shri Chandan has also placed stamp/seal of Durga Motor Company upon the notice.
It is submitted that all the above three grounds upon which the Learned Assessing Officer is depending for the validity of service have no legs. The law prescribes that in the case of the company the notice can be served either upon the director or upon an agent duly authorized by the company. In this case it is not the case of the Learned Assessing Officer that Shri Chandan had any written authority to receive notices on behalf of the company. His receiving of notices subsequently is equally bad in law and cannot validate the earlier service. His putting stamp of Durga Motor Company is of no avail. Durga Motor Company is a separate entity. How putting the seal of Durga Motor Company validate the service of notice u/s 148 is not understandable. The Learned Assessing Officer has not substantiated his contention in any way. In view of this the submission of the Learned Assessing Officer regarding service upon 25 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
Chandan are of no avail.
(B) Case laws quoted by the Learned Assessing Officer :-
The Learned Assessing Officer has quoted certain case laws to support his contention that service upon Shri Chandan was valid. In this regard it is submitted that the assessee had quoted the following decisions while making earlier submission before your goodself: -
(i) CIT vs. Vardhman Estate P. Ltd. 287 ITR 368 (Del)
(ii) CIT vs. Bhan Textiles P. Ltd. 287 ITR 370 (Del)
(iii) CIT vs. Lunar Diamonds Ltd. 281 ITR 1 (Del)
(iv) Venkat Naicken Trust v. ITRO 242 ITR 141 (Mad)
(v) Sudev Industries Ltd. v. ITO 98 TTJ 97 (Del)
(vi) Hind Book House v. ITO 92 lTD 415 (Del)
(vii) Dulli Chand Laxmi Narain v. ACTT 89 lTD 426 (Del)
(viii) Dina Nath v. CIT 204 ITR 667 (J&K)
(ix) Jayanthi Talkies Distributors v. CIT 120 ITR 576 (Mad)"
None of the above decisions have been discussed by the Learned Assessing Officer. The Learned Assessing Officer has quoted certain decisions which are not applicable to the facts of the case as under: -
(x) M.X. De Nornha & Sons vs. CIT (All) 18 ITR 928 The ratio of this case is not applicable to the facts of the case. The Learned Assessing Officer himself has stated that in this case notice was received by the director whereas in the case of the assessee no notice was ever received by the director.
(xi) Southern Plantation Ltd. vs Commissioner of Agrl. IT (Ker) 236 ITR 509 In this case notice was served upon counsel who was authorized to receive all documents. This is not the position in the case of the assessee. No person was authorized to receive notices on behalf of the assessee company.
Therefore service upon Shri Chandan or Anand Sharma was not valid.
Sultanpur Kshetriva Gramin Bank vs. JCIT (All) 336 ITR 156 In this case the assessee ratified the receipt of notice by C.A. whereas in this case the assessee never ratified receipt of notice by C.A. Hence the ratio of the case is not applicable to the facts of the case.
(C) Service upon Shri Anand Sharma -
26 ITA No. 465/JP/2017M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
The Learned Assessing Officer has not claimed that service upon Shri Anand Sharma was a valid service. It is submitted that a Chartered Accountant is authorized to receive notices which arise and are issued during the course of assessment proceedings. It is submitted that notice u/s 148 goes to the root of the proceedings. In other words the assessment proceedings originate with the service of this notice. Therefore there cannot be any occasion to authorize the CA to receive such notice. It is after the receipt of notice u/s 148 that proceedings for assessment begin. Therefore a CA or a counsel is engaged once assessment proceedings start.i.e. after the receipt of notice u/s 148 of the Income Tax Act, 1961. The assessee in his earlier submitted has quoted the following case laws to support that service upon CA or counsel is not a valid service. The case laws are quoted again below: -
(ii) Har Singar Gutkha vs. Deputy Commissioner of Income Tax (2011) 138 TTJ 318 (Lucknow) Service of notice under s. 148 on a chartered accountant who was not empowered to receive such notice on behalf of the assessee company or on another person who was not authorized to receive a notice was not a valid service of notice on the assessee, more so when it was not shown that the assessee was keeping out of way for the purpose of avoiding service of notice or that there was any other reason that the notice could not be served on the assessee in the ordinary way and, therefore, assessment completed pursuant to said notice was bad in law.
(iii) Arjun Singh vs. ADIT (Inv.) [20001 2461TR 363 (MP) Service of notice on the counsel of the petitioners and service through IT Inspector is not in consonance with the requirement of s. 282.
7. Assessment completed without first deciding the objection: -
The Learned Assessing Officer has submitted that the assessee filed the objection at the 11th hours which did not leave time to him for deciding the objection and in any case he has met the objections in the assessment order.
In this regard it is submitted that the assessee objected to the service of issue of notice u/s 148 well in time. The assessee ,was not served any notice except the one dated 09.02.2015 soon thereafter the assessee contacted his counsel and filed the objections vide letter dated 09.03.2015. The assessment has been completed on 24.03.2015 whereas the Learned Assessing Officer had time to complete the assessment upon 31.03.2015. If he so wanted he could have passed order disposing the 27 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
objection of the assessee. He had sufficient time between 09.03.2015 to 31.03.2015. The objection could have been disposed off even a few days before passing the assessment order. But this was not done. The Learned Assessing Officer had regard and little sanctity to the procedure laid down by Hon'ble Apex Court in the case of G.K.N. Drivesheft. In these circumstances it does not behove the Learned Assessing Officer to make a lame excuses for not disposing the objection.
8. Notice u/s 148 issued without application of mind:-
The assessee in his submissions made before your honor had submitted that the Learned Assessing Officer issued notice u/s 148 mechanically simply on the basis of information received from DDIT (Inv.)-II. No enquiry was caused at his level. In these circumstances the assessee had challenged the action initiated u/s 148 and a number of case laws were quoted in support.
The Learned Assessing Officer has not brought any new material to justify his action for taking action u/s 148 without causing any enquiry which could have led him to believe that there was escapement of income. He has tried to justify his action on the basis of material made available to him by the DDIT (Inv)-11. The Learned Assessing Officer had also quoted certain case laws in his support. It is submitted that when two divergent opinions are available on the same issue then one that is favourble to the assessee has to be followed 881TR 192/6 DTR 481.
9. Completion of assessment in violation of principle of natural justice: -
The assessee had challenged the completion of assessment being volatile of the principle of natural justice on the following counts: -
(i) The assessment has been completed despite objection of the assessee that there was no valid service of notice u/s-148 The Learned Assessing Officer should have met this objection before completing the assessment.
(ii) No adequate opportunity was provided to the assessee to defend himself before completing the assessment: -
Virtually only two effective opportunities were granted by issuing of notice dated 09.02.2015 and 02.03.2015. Although notice u/s 148 was issued on 14.03.2014. The Learned Assessing Officer had more than a year to complete the assessment at his disposal but hardly a month and 28 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
a half was given to the assessee. These facts established that proper opportunities were granted to the assessee.
(iii) The Learned has based the assessment order and has made the addition on the basis of statement of Shri Hitesh Garg recorded at the time of survey. The principles of natural justice required that before utilizing the statement of Shri Hitesh Garg assessee should have been furnished the copy of his statement and also allowed an opportunity for cross examining Shri Hitesh Garg, this was not done. This renders the assessment void. The Learned Assessing Officer has mentioned that assessee was in possession of the statement of Shri Hitesh Garg. In this regard it is submitted that no authority of department i.e. either the DDIT or the Learned Assessing Officer ever supplied the copy of statement of State of of Shri Hitesh Garg. The allegation of the Learned Assessing Officer is false. The Learned Assessing Officer has not spelt out the reasons for not affording opportunity for cross examining Shri Hitesh Garg. In the remand report the submissions of the Learned Assessing Officer are helter skelter and he has just beaten about the bush and has not met the real issues. In view of this the assessment deserves to be quashed even on grounds of violation of principles of natural justice."
Before we decide the merits of these grounds, it is necessary to evaluate the order passed by the ld. CIT (A) as the ld. CIT (A) has dealt with these grounds in para 3.1.2 of his order. However, the operative portion of the order of ld. CIT (A) are contained in para 3.1.2 (iv) to (viii) and the same are reproduced below :-
" (iv) I have duly considered the assessment order, submissions of the appellant, the remand report of the AO, its rejoinder and further submissions and the material placed on record. I have also discussed the matter with the AO and have also perused the relevant assessment record. It is an undisputec fact that the AO has not sent any notice issued u/s 148 of the Act at the registered office address of Ihe appellant company at 12-13, Patel Colony, Laxmi Path, Sardar Patel Marg, Jaipur either through registered post or speed post. Further, the AO has not served notice issued u/s 148 of the Act through affixture at the above registered office address. In fact, it is evident from the relevant assessment record that even after raising the objection by the appellant about non service of notice issued u/s 148 of the Act in a valid manner, a copy of the notice issued u/s 148 of the Act was still not served upon the appellant at any point of time oefore completing the 29 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
assessment on 24.03.2015. It is also noted that there was no power of attorney lying on the assessment record issued by the appellant company in favour of Shri Anand Sharma, CA. Therefore service of notice to Shri Anand Sharma issued u/s 148 of the Act is of no consequence in the absence of any authority from the appellant company. Even, the order sheet do not contain any entry which may indicate that a power of attorney was filed by the appellant company in favour of Snri Anand Sharma on or before the 14.03.2014 for the year under consideration. The service of notice on Shri Chandan, who was neither the employee of the appellant nor was authorized to receive such notice on behalf of the appellant cannot be treated as a valid service in view of the provisions of section 282 of the Act to be read with Order V of Code of Civil Procedure, 1908. It is pertinent to mention here that Shri Chandan while receiving the notice dated 14.03.2014 affixed the stamp of M/s Durga Motor Company meaning thereby that the saic notice issued in the name of the appellant company was received on behalf of M/s Durga Motor Company and by no stretch of imagination, it could be presumed that it was serves upon the appellant company.
(v) It may be mentioned that in the case of CIT vs. Chetan Gupta [2015] 62 taxmann.com 249 (Delhi), the Hon'ble High Court of Delhi has considered a number of judicial pronouncements on the issue and it was held by the Hon'ble High Court of Delhi that:
"• To summarize the conclusions:
(i) Under section 148, the issue of notice to the assessee and service of such notice upon the assessee are jurisdictional requirements that must be mandatorily complied with. They are not mere procedural requirements.
(ii) For the Assessing Officer to exercise jurisdiction to reopen on assessment,, notice under section 148 (1) has to be mandatorily issued to the assessee. Further the Assessing Officer cannot complete the reassessment without service of the notice so issued upon the 30 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
assessee in accordance with section 282 (1) of the Act, read with Order V Rule 12 CPC and Order Ill Rule 6 CPC.
(iii) Although there is change in the scheme of sections 147, 148 and 149 of the Act from the corresponding section 34 of the 1922 Act, the legal requirement of service of notice upon the assessee in terms of section 148, read with section 282(1) and section 153(2) of the Act is a jurisdictional pre-condition to finalizing the reassessment.
(iv) The onus is on the revenue to show that proper service of notice has been effected under section 148 of the Act on the assessee or an agent duly empowered by him to accept notices on his behalf. In the present case, the revenue has failed to discharge that onus.
(v) The mere fact that an assessee or some other person on his behalf not duly authorized has participated in the reassessment proceedings after coming fo know of it will not constitute a waiver of the requirement of effecting proper service of notice on the assessee under section 148.
(vi) Reassessment proceedings finalized by an Assessing Officer without effecting proper service of notice on the assessee under section 148 (1) of the Act are invalid and liable to be quashed.
(vii) Section 292138 is prospective. In any event the assessee in the present case, having raised an objection regarding the failure by the revenue to effect service of notice upon him, the main part of section 29288 is not attracted. [Para 46] On the facts of the present case, the Tribunal was right in its conclusion that since no proper service of notice had been effected under section 148 (1) on the assessee, the reassessment proceedings were liable to be quashed. [Para 47] The revenue's appeal is dismissed. [Para 48]"
31 ITA No. 465/JP/2017M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
Thus, it is evident from the above decision of Hon'ble High Court of Delhi that service of notice issued u/s 148 of the Act is a jurisdictional requirement and without service of notice, the assessment order passed is liable to be, quashed. In the said order, it was held by the Hon'ble High Court that section 292BB of the Act is prospective in nature and the main part of section 292BB was not applicable and the participation by an assessee or some other person on his behalf not duly authorized in the reassessment proceedings after coming to know of it will not constitute a waiver of the requirement of effecting proper service of notice on the essessee under section 148 of the Act. These facts are identical with the facts of the instant case under consideration and therefore the decision of Hon'ble High Court of Delhi in the case of CIT Vs Chetan Gupta (Supra) is squarely applicable to the instant case under consideration.
(vi) It may be mentioned here that section 292BB of the Act has been inserted w.e.f. 01.04.2008 and as it was held by the Hon'ble Delhi High Court in the case of CIT vs. Chetan Gupta (Supra) that section 292BB is prospective in nature, therefore, it is not applicable to the AY 2007-08 which is the year under consideration. Moreover, in the instant case under consideration, the appellant has challenged the service of notice issued u/s 148 of the Act at the first available opportunity itself before the AO during the course of assessment proceedings and even if, the appellant attended the proceedings before the AO, the provisions of section 292BB of the Act are not applicable as the provisions of section 292BB of the Act were held to be prospective in nature by the Hon'ble High Court of Delhi.32 ITA No. 465/JP/2017
M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
(vii) It may be mentioned that in a recent decision in the case of ITO Vs Om Parkash Kukreja [2016] 70 taxmann.com 147 (Chandigarh - Trib.), it was held by Hon'ble ITAT that :-
"12(i) It is well settled law that Assessing Officer will have no jurisdiction to make an assessment under section 147/148 unless the notice under section 148 is validly issued and served upon assessee.
13. Considering the above discussion in the light of the findings of fact recorded by the Id. CIT(Appe.als), it is clear that notice under section 148 of the Act dated 22.03.2013 have not been served upon assessee, therefore, the re-assessment made under section 147/148 cannot be held to be valid because the same is bad in law. There is no question of service by affixture by the Inspector at the wrong address upon assessee. The Id. CIT(Appeals), therefore, in proper perspective correctly set aside the re-assessment proceedings. We do not find any justification to interfere with the order of the Id. CIT(Appeals) in allowing the appeal of the assessee. The departmental appeal has no merit. The same is, accordingly, dismissed."(emphasis supplied)
(a) In the case of CIT Vs ITC Hotels [2014] 50 taxmann.com 424 (Karnataka), it was held by Hon'ble High Court of Karnataka that:
"6. Therefore, in the instant case, admittedly, when notice under Section 148 of the Act is not duly served on the assessee, the proceedings under Section 147 of the Act is one without jurisdiction and the Tribunal has rightly set aside the order. We find no infirmity or irregularity committed by the Tribunal. Hence, the substantial question of law is answered in favour of 33 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
the assessee and against the Revenue. There is no merit in the appeal and the same is accordingly dismissed." (emphasis supplied)
(b) It may be mentioned that in the case of CIT Vs Dr. Ajay Prakash [2014] 42 taxmann.com 387 (Allahabad), the Hon'ble High Court of Allahabad has upheld the order of Hon'ble ITAT, wherein the assessment order in reassessment proceedings was quashed on account of invalid service of notice issued u/s 148 of the Act. It was held by the Hon'ble High Court that:
"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 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."
(viii) Therefore, in view of the facts of the instant case under consideration and the judicial pronouncements as discussed above, it is held that the notice issued u/s 148 of the Act on 14.03.2014 was not served upon the appellant and thus the AO has assumed the jurisdiction to assess the income of the appellant without the authority of law as non service of notice issued u/s 148 of the Act is not a mere procedural irregularity but the service of notice issued u/s 148 of the Act in a valid manner is a mandatory requirement.
Hence, it is held that the impugned assessment order passed by the AO is without jurisdiction and is bad in law and thus hereby quashed."
34 ITA No. 465/JP/2017M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
9. After having heard the ld. Counsels for both the parties at length and after going through the facts of the present case, we find that there are certain undisputed facts in this case i.e. the AO has not admittedly sent any notice issued under section 148 of the IT Act to the registered office address of the assessee company at 12-13, Patel Colony, Laxmi Path, Sardar Patel Marg, Jaipur either through registered post or speed post and further the AO has made no efforts to serve notice through Affixture at the above registered office address. Although the assessee has categorically raised the objection about non service of notice under section 148 of the Act but still no copy of notice issued under section 148 of the Act was served upon the assessee at any subsequent point of time but before completing the order of assessment on 24.03.2015. From the record, we also notice that there is no power of attorney of Shri Anand Sharma, CA given by the assessee, therefore, in such circumstances even if any notice was served on Shri Anand Sharma under section 148 of the Act, but the same is of no consequence in the absence of any valid authority/authorization given by the assessee company to the said Shri Anand Sharma, CA. The ld. CIT (A) has also pointed out that in the completed order sheet there no indication of the fact that any point of time any Power of Attorney or Authorization was filed by the assessee company in favour of Shri Anand Sharma on or before 14.03.2014 for the year under consideration.
Although the ld. D/R submitted before us that the service of notice was effected on Shri chandan but the fact remains that the said Shri Chandan was neither the employee of the assessee nor was authorized to received such notice and, therefore, in such a situation we cannot treat the said alleged service on Shri Chandan to be a 35 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
valid service in view of the provisions of section 282 of the Act read with Order 5 of the Code of Civil Procedure 1908. Even otherwise, the said Shri Chandan while allegedly receiving the notice on 14.03.2014 had affixed the stamp of M/s. Durga Motor Company which also goes to show that the said notice was never served upon the assessee. We have also gone through the decision cited by the ld. CIT (A) in case of CIT vs. Chetan Gupta (2015) 62 taxmann.com 249 (Delhi) wherein it has been categorically held by Hon'ble Delhi High Court that under section 148 of the IT Act, the issue of notice to the assessee and the service of such notice upon the assessee are jurisdictional requirements that must be mandatorily complied with and thus they are not mere procedural requirements. The ld. A/R has also drawn our attention to the decision of Hon'ble Bombay High Court in case of Harjeet Surajprakash Girotra vs. Union of India wherein again it has been reiterated that if there is no valid service of notice under section 148 of the Act upon the assessee, then any consequential order of reassessment passed by the AO needs to be set aside. The ld. A/R has also drawn our attention to the decision of the Coordinate Bench of the Tribunal in case of Charan Singh vs. ITO in ITA No. 906/JP/2018 wherein also the above legal proposition has been reiterated by relying upon the decision in the case of CIT vs. Chetan Gupta (supra). Therefore, we are also of the considered view that service of notice issued under section 148 of the Act is a mandatory as well as jurisdictional requirement and thus without valid service of notice, the reassessment order passed is liable to be quashed. Even in the order passed by Hon'ble Delhi High Court in case of CIT vs. Chetan Gupta (supra) it has been held that section 292BB of the Act is prospective in nature and the main part of section 292BB was not applicable and thus participation by the assessee or some 36 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
other person on his behalf not duly authorized in the reassessment proceedings, will not constitute a waiver of the requirement of effecting proper service of notice on the assessee under section 148 of the Act. Since the facts contained in the present case are also identical with the facts contained in case of CIT vs. Chetan Gupta (supra), therefore, the findings of the said case are fully applicable in the present case. Since section 292BB of the Act was inserted with effect from 01.04.2008 and it has already been held by Hon'ble Delhi High Court in the above case that the said provision is prospective in nature, therefore, they are not applicable for the year under consideration as the year under consideration in the present case involved is 2007-08. Even as per the facts, the assessee had challenged the service of notice issued under section 148 of the Act at the first available opportunity during the course of assessment proceedings and even if the assessee attended the proceedings, even then the provisions of section 292BB of the Act are of no consequence or applicable as the same have already been held to be prospective in nature.
9.1. Since as per the facts, no notice under section 148 of the Act was validly served upon the ssessee on 14.03.2014, therefore, the AO could not have assumed the jurisdiction to assess the income of the assessee without authority of law as we are of the considered view that non service of notice issued under section 148 of the Act is a jurisdictional issue and is not a mere procedural irregularity. Thus the ld.
CIT (A), in our view has rightly quashed the order of assessment by holding it without jurisdiction and bad in law.
9.2. No new facts or circumstances have been brought before us in order to controvert or rebut the lawful findings so recorded by the ld. CIT (A), therefore, we 37 ITA No. 465/JP/2017 M/s. Mahla Real Estate Pvt. Ltd., Jaipur.
find no reason to interfere into or deviate from the lawful findings so recorded by the ld. CIT (A) and the same are upheld.
10. In the result, appeal of the revenue is dismissed.
Order pronounced in the open court on 23/01/2020.
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