2016 (11) TMI 1048 - AT - Income Tax

Validity of reopening of assessment - non valid service of notice - Held that - On the first date of notice, i.e., March 25, 2013, a notice was stated to be served by affixture upon the assessee. Though the assessee has raised objection with regard to valid service of notice but the Assessing Officer has not brought anything on record or specifically dealt with it in the assessment order. Similar objection was also raised before the Commissioner of Income-tax (Appeals) and the Commissioner of Income- tax (Appeals) has also failed to deal with the issue with regard to service of notice under section 148 of the Act. Since the onus is upon the Assessing Officer to establish valid service of notice under section 148 of the Act and he failed to do so, he cannot assume valid jurisdiction to frame the assessment under section 147 read with section 143(3) of the Act and once the reopening is not valid, the assessment framed consequent thereto deserves to be annulled. In the instant case, since a proper notice under section 148 of the Act was not served upon the assessee, the Assessing Officer could not assume jurisdiction to frame the assessment. Therefore, the assessment framed by him is bad in law - Decided in favour of assessee

Summary

Issues:
Validity of reopening assessment due to notice under section 148 not served upon the assessee.

Analysis:
The appeal was filed by the assessee against the order of the Commissioner of Income-tax (Appeals) challenging the validity of the reopening of the assessment. The main contention was that the notice under section 148 of the Income-tax Act was not served upon the assessee. The reasons for reopening the assessment were recorded on March 19, 2013, and a notice dated March 25, 2013, was issued through speed post and served by affixture. The assessee objected to the service of notice and requested evidence of service, but the Assessing Officer failed to provide any proof of service despite repeated objections.

During the assessment proceedings, the Assessing Officer mentioned that the notice was sent through speed post and served by affixture, but no details were provided regarding the service through speed post. The Commissioner of Income-tax (Appeals) rejected the legal objection raised by the assessee, leading to the appeal before the Tribunal.

The Tribunal observed that the assessment was reopened based on directions from the Commissioner of Income-tax (Appeals) and proper reasons were recorded. However, the notice under section 148 was served through speed post and affixture without proper authorization for substituted service. The onus was on the Assessing Officer to establish valid service of notice, which was not done. The Tribunal noted that the Assessing Officer overlooked the provisions of the Civil Procedure Code regarding substituted service and failed to provide evidence of valid service. As a result, the assessment framed was deemed invalid as the jurisdiction to frame the assessment was not established due to improper service of notice.

Consequently, the Tribunal allowed the appeal of the assessee, annulled the assessment, and set aside the order of the Commissioner of Income-tax (Appeals). Since the assessment order was annulled, the Tribunal found no need to address the appeal on its merits.

In conclusion, the Tribunal held that the assessment was invalid due to improper service of notice under section 148, leading to the annulment of the assessment order and the allowance of the assessee's appeal.