2018 (6) TMI 221 - HC - Income Tax

Proper service under the provisions of Section 282(2) - Validity of reopening of assessment - service of notice at the factory premises of the Assessee on the security guard - difference between served and issued - Held that - Discussion and conclusions/findings recorded by the first appellate authority, un-ambiguously do not reflect and show that ground of invalidity of service in terms of Section 282 of the Act was raised. There is no discussion on the issue; whether the service by registered post or by the Inspector on the security guard would be valid. Legal effect and consequences were not considered. This would un-mistakenly support the submission of the appellant-Revenue that this ground was not taken at the initial stage and when the first appeal was preferred and decided. Moreover, what is important and relevant is whether this contention was raised before the Assessing Officer. Respondent-assessee accepts that this contention was not raised before the Assessing Officer. We find sufficient justification and reason to allow the present appeal and answer the substantial question of law in favour of the appellant-Revenue and against the respondent-assessee. It is held that the assessment proceedings under Section 147/148 are not invalid or void for want of proper service of notice. However, an order of remand is required to be passed as the Tribunal has not adjudicated and decided the appeal filed by the respondent-assessee on merits.

Issues Involved:
1. Validity of service of notice under Section 148 of the Income Tax Act, 1961.
2. Jurisdiction of the Assessing Officer who issued the notice.
3. Compliance with procedural requirements under Section 282 of the Income Tax Act.
4. Application of Section 292B of the Income Tax Act regarding mistakes, defects, or omissions in the notice.

Detailed Analysis:

1. Validity of Service of Notice under Section 148:
The primary issue was whether the service of notice under Section 148 of the Income Tax Act, 1961, was valid. The Tribunal had held that the notice served on the security guard at the factory premises was not proper service under Section 282(2) of the Act. The court examined the provisions of Section 282 and concluded that the use of the term "may" in Sub-section (2) indicates that the provision is permissive and not mandatory. The court emphasized that the provision was enacted to ensure compliance with principles of natural justice and should not be used for fault-finding. The court also referred to precedents where service on a person other than the addressee was deemed valid if the notice was received and complied with.

2. Jurisdiction of the Assessing Officer:
The respondent-assessee had contested the jurisdiction of the Deputy Commissioner of Income Tax, Circle Bulandshahar, who issued the notice under Section 147/148. The court noted that the respondent-assessee had voluntarily filed returns for previous assessment years before the Assessing Officer at Bulandshahar and had not raised any objection during the assessment proceedings. The court ruled that the jurisdictional preconditions were met, and the issue of jurisdiction was not raised at the initial stage, thus validating the proceedings.

3. Compliance with Procedural Requirements under Section 282:
The court examined whether the service of notice complied with Section 282 of the Act. It was found that the notice was sent by registered post and served by the Inspector of the Income Tax Department. The court referred to various precedents indicating that service by registered post raises a presumption of proper service unless rebutted by the assessee. The court observed that the respondent-assessee did not contest the service of notice before the Assessing Officer and had participated in the assessment proceedings, thus implying compliance with procedural requirements.

4. Application of Section 292B:
Section 292B of the Income Tax Act states that a notice or proceeding shall not be invalid due to any mistake, defect, or omission if it is in substance and effect in conformity with the intent and purpose of the Act. The court emphasized that the provision aims to curtail technical objections that do not cause confusion or prejudice to the assessee. The court held that the procedural irregularity in the service of notice did not invalidate the assessment proceedings as the respondent-assessee was aware of the proceedings and had participated in them.

Conclusion:
The court allowed the appeal by the Revenue, holding that the assessment proceedings under Section 147/148 of the Act were not invalid or void for want of proper service of notice. The Tribunal's decision was set aside, and the case was remanded to the Tribunal for adjudication on merits. The court directed the parties to appear before the Tribunal on a specified date for further proceedings. The appellant-Revenue was also awarded costs.

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