2020 (9) TMI 1212 - AT - Income Tax

Reopening of assessment u/s 147 - No notice issued u/s 148 - HELD THAT - As the assessee while filing of its return has made a note therein it was mentioned that no notice u/s 148 was served upon the assessee and moreover the assessee have also served a letter to the revenue thereby categorically mentioning that no service of notice was effected upon the assessee and even the revenue in his reply dated 07/11/2017 has no where mentioned that notice u/s 148 was ever served upon the assessee - merely participation of the assessee in the proceedings is not a waiver to the service of notice u/s 148 upon the assessee. As per record prior to completion of reassessment the assessee has raised a categorical objection that he has not been duly served in accordance with Section 148 of the Act. Therefore the proviso to Section 292BB is attracted and Revenue cannot take advantage of the main portion of Section 292BB. We found that the revenue has failed to bring on record any positive evidence to prove that the notice u/s 148 of the Act was served upon the assessee whereas the assessee has successfully placed on record letter dated 07/11/2017 issued by the department wherein it has no where been mentioned that the notice u/s 148 was ever served upon the assessee - we can safely conclude that there was no proper service of notice u/s 148 of the Act was effected in the present case before completion of reassessment u/s 147 r.w.s 143(3). Therefore we set aside the orders of the lower authorities and quash the proceeding u/s 148 - This ground of appeal is allowed.

Issues Involved:
1. Validity of the order passed under Sections 148/143(3) of the Income Tax Act.
2. Applicability of Section 50C of the Income Tax Act regarding the expenditure on vacating premises.
3. Treatment of transaction for vacating premises under consent terms.
4. Sustaining the addition of ?1,13,23,461/- out of the total addition of ?2,76,51,300/-.
5. Levying of interest under Sections 234A and 234B.
6. Initiation of penalty proceedings under Section 271(1)(c).

Issue-wise Detailed Analysis:

1. Validity of the Order Passed under Sections 148/143(3):
The primary contention was that no notice under Section 148 was served on the assessee, making the reassessment proceedings void ab initio. The assessee argued that the absence of proper service of notice under Section 148 is a jurisdictional defect that cannot be cured by participation in the reassessment proceedings. The Tribunal noted that the Assessing Officer (AO) did not provide evidence of service of notice under Section 148. The Tribunal relied on various judicial precedents, including CIT vs. Chetan Gupta, which emphasized that service of notice under Section 148 is a jurisdictional requirement. The Tribunal concluded that the reassessment proceedings were invalid due to the lack of proper service of notice under Section 148 and quashed the proceedings.

2. Applicability of Section 50C Regarding the Expenditure on Vacating Premises:
The assessee contended that the expenditure incurred for vacating the premises should not be treated as a sale, and thus, the provisions of Section 50C should not apply. The CIT(A) had treated the expenditure as a sale and applied Section 50C. However, since the Tribunal quashed the reassessment proceedings on jurisdictional grounds, this issue became infructuous.

3. Treatment of Transaction for Vacating Premises under Consent Terms:
The assessee argued that the transaction for vacating the premises under consent terms in a suit filed before the Rent Tribunal was against zero consideration and should not be treated as a sale. The CIT(A) had treated it as a transfer within the meaning of Section 2(47) read with Section 45, thereby applying Section 50C. Again, this issue became infructuous due to the quashing of reassessment proceedings.

4. Sustaining the Addition of ?1,13,23,461/-:
The CIT(A) had sustained an addition of ?1,13,23,461/- out of the total addition of ?2,76,51,300/-, holding that the transaction was a transfer within the meaning of Section 2(47) read with Section 45, and thus, Section 50C was applicable. This issue also became infructuous due to the quashing of reassessment proceedings.

5. Levying of Interest under Sections 234A and 234B:
The assessee contested the levy of interest under Sections 234A and 234B. However, since the reassessment proceedings were quashed, this issue became infructuous.

6. Initiation of Penalty Proceedings under Section 271(1)(c):
The assessee also contested the initiation of penalty proceedings under Section 271(1)(c). With the reassessment proceedings quashed, this issue became infructuous.

Conclusion:
The Tribunal found that the reassessment proceedings were invalid due to the lack of proper service of notice under Section 148. Consequently, the Tribunal quashed the reassessment proceedings, rendering the other grounds raised by the assessee infructuous. The appeal of the assessee was allowed.

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