2018 (6) TMI 892 - AT - Income Tax

Validity of reassessment proceedings u/s 147 - no notice u/s 148 on the deceased assessee or the sole legal hire of assessee - Held that - Proper notice u/s 148 of the Act for initiating reassessment proceeding is not a mere procedural requirement but the service of the prescribed notice on the assessee is a condition precedent to the validity of any of the reassessment made u/s 147 - thus in the instant case, no notice has ever been properly served either u/s 148 or 142(1) upon the deceased assessee or his sole legal heir. Assessment Order under challenge cannot be sustained and impugned order under challenge liable to be set aside under the limb of non service/ invalid notice itself and hence, the order passed by the CIT(A) is set aside and the addition confirmed by the CIT(A) stands deleted - Decided in favor of assessee.

Issues Involved:
1. Validity of reassessment proceedings initiated under Section 147/148 of the I.T. Act.
2. Service of statutory notices under Sections 148 and 142(1) of the I.T. Act.
3. Inclusion of land sale under "Income from Capital Gains."
4. Violation of principles of natural justice.
5. Estimation of the cost of acquisition.
6. Entitlement to the benefit under Section 54F.
7. Incorrect charging of interest under Section 234B.
8. Wrongful initiation of penalty under Section 271(1)(c).

Issue-wise Detailed Analysis:

1. Validity of Reassessment Proceedings:
The appellant contended that the reassessment proceedings initiated by the AO were "bad in law and without and/or in excess jurisdiction," arguing that the information regarding the land sale emanated from a search on a third party and not directly from the appellant. The reassessment was claimed to be void ab initio and not warranted under the facts and circumstances.

2. Service of Statutory Notices:
The appellant emphasized that notices under Sections 148 and 142(1) were not served as per law. The notice under Section 148 was issued to the deceased assessee and served through affixture. Subsequent notices under Section 142(1) were also served through affixture on the deceased and later on the legal heir. The tribunal found that the AO did not attempt to serve notices in the ordinary way and directly resorted to substituted service, which was not in compliance with the procedural requirements under the CPC.

3. Inclusion of Land Sale under "Income from Capital Gains":
The authorities below failed to appreciate that the land in question was not a capital asset and thus should not be taxed under "Income from Capital Gains." However, the tribunal did not delve into this issue due to the procedural lapses found in the service of notices.

4. Violation of Principles of Natural Justice:
The appellant argued that the reassessment order was passed in violation of the principles of natural justice. The tribunal noted that the non-service of notices invalidated the reassessment proceedings, thereby upholding the appellant's contention of a violation of natural justice.

5. Estimation of Cost of Acquisition:
The appellant contended that the AO estimated the cost of acquisition on the lower side. However, this issue was not addressed in detail due to the tribunal's focus on the procedural invalidity of the notices.

6. Entitlement to Benefit under Section 54F:
The appellant claimed entitlement to the benefit under Section 54F, which was not considered due to the procedural lapses in the service of notices.

7. Incorrect Charging of Interest under Section 234B:
The appellant argued that interest under Section 234B was wrongly charged. The tribunal did not address this issue specifically due to the overarching procedural invalidity.

8. Wrongful Initiation of Penalty under Section 271(1)(c):
The appellant contended that the penalty under Section 271(1)(c) was wrongly initiated. This issue was not deliberated upon due to the procedural flaws found in the reassessment process.

Conclusion:
The tribunal concluded that the initial and subsequent notices were not properly served either on the deceased assessee or the legal heir, rendering the reassessment proceedings invalid. The assessment order was set aside, and the additions confirmed by the CIT(A) were deleted. The appeal filed by the assessee was allowed.

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