2020 (9) TMI 1125 - AT - Income Tax

Reopening of assessment u/s 147 - non issue of notice u/s 148 on correct address - Applicability of section 292 BB - plea of the assessee that notice u/s 148 was wrongly issued to the assessee, as he had duly complied AIR notice and explained the source of deposit - whether the notice issued u/s 148 of the Act was served upon the assessee or not? - HELD THAT - As clearly held that notice has to be issued either on the address available in PAN database or address available in the income tax return and has clearly held that the AO was circumscribed and bound by the express mandate of Rule 127. As held in this case that is the notice could not be served on the address available in the PAN data base or at the address mentioned in Income Tax Return only then the notice can be issued on the address mentioned in banking company or post office. No such attempt has been made in this case. In the present case, clearly the notice u/s 148 was not served on the assessee on the address mentioned in PAN database but was straight forwarded issued at another address. As decided in MOHD. RIZWAN PROP. M/S M.R. GARMENTS MOULVIGANJ LUCKNOW 2017 (3) TMI 1792 - ALLAHABAD HIGH COURT as considered the applicability of section 292 BB wherein it has been held that notice issued u/s 147/148 is a jurisdictional step and it cannot be treated to be mere irregularity curable u/s 292 BB of the Act - Decided in favour of assessee.

Issues Involved:

1. Validity of notice issued under Section 148.
2. Service of notice under Section 148.
3. Addition of ?12,33,330 under Section 69 of the Income Tax Act.
4. Opportunity of being heard before passing order under Section 144.
5. Principles of natural justice.
6. Additional ground regarding the reason to believe for cash deposit verification.

Issue-wise Detailed Analysis:

1. Validity of Notice Issued Under Section 148:
The assessee argued that the notice under Section 148 was wrongly issued as he had already complied with the AIR notice and explained the source of the deposit. The Tribunal found that the Assessing Officer (AO) recorded reasons for the notice after considering the assessee's written reply. The AO concluded that the assessee did not provide proof of the sale of the shop and stock, leading to the belief that income had escaped assessment. The Tribunal agreed with the Department's argument that the AO had followed due process, distinguishing the case from the precedents cited by the assessee. Thus, the additional ground of appeal was dismissed.

2. Service of Notice Under Section 148:
The assessee contended that the notice was not served at the address listed in the PAN database. The Tribunal noted that the notice was issued to an incorrect address, not the one in the PAN database. The Tribunal referenced the Supreme Court's decision in Pr. CIT vs. I-Ven Interactive Ltd., which mandates that notices must be issued to the address available in the PAN database. The Tribunal also cited the Delhi High Court's ruling in Veena Devi Karnani, emphasizing the need to follow Rule 127 of the Income Tax Rules. The Tribunal concluded that the notice was not validly served, thus rendering the assessment proceedings null and void. Ground No. 2 of the appeal was allowed.

3. Addition of ?12,33,330 Under Section 69:
The Tribunal did not adjudicate on the merits of the addition under Section 69 as no arguments were presented on this issue. Therefore, the matter remains unresolved in this judgment.

4. Opportunity of Being Heard Before Passing Order Under Section 144:
The assessee claimed that proper opportunity of being heard was not provided before passing the order under Section 144. However, the Tribunal did not specifically address this issue in the judgment, focusing instead on the procedural validity of the notice under Section 148.

5. Principles of Natural Justice:
The assessee argued that the order was against the principles of natural justice. This issue was inherently addressed through the Tribunal's examination of the service of notice and the opportunity of being heard. By allowing Ground No. 2, the Tribunal indirectly upheld the principles of natural justice.

6. Additional Ground Regarding the Reason to Believe for Cash Deposit Verification:
The assessee introduced an additional ground, arguing that the reasons recorded for verifying the cash deposit did not constitute a valid reason to believe that income had escaped assessment. The Tribunal dismissed this additional ground, agreeing with the Department that the AO had followed due process in recording reasons and issuing the notice under Section 148.

Conclusion:
The Tribunal allowed the appeal on the grounds of improper service of notice under Section 148, rendering the assessment proceedings null and void. Other grounds, including the merits of the addition under Section 69, were not adjudicated. The judgment emphasized the importance of serving notices to the address listed in the PAN database, as mandated by the Supreme Court and High Court precedents.

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