2020 (11) TMI 313 - AT - Income Tax

Validity of reopening of assessment - notice under section 148 issued at wrong address - HELD THAT - AO before issuing notices did not verify with the details that is already available with the revenue like address mentioned on PAN card etc., filed by assessee. AO should have verified the details available with department before issuing any notice. Under such circumstances, impugned notice under section 148 issued at wrong address cannot be held to be valid, and the assessment order passed consequent to such notice deserves to be quashed. Re-assessment order dated 29/2/2016, passed is without offering proper opportunity of being heard to assessee, which is not in accordance with law. While passing impugned reassessment order, principle of natural justice and audi alterm partem needs to be followed. We therefore quash impugned notice issued under section 148 dated 28/04/2015 at the wrong address and the consequential assessment order passed is set aside. Penalty u/s 271(1)(c), 271(1)(b) for non compliance of notice - Penalty u/s 271F for not filing Return of income - HELD THAT - We note that all these penalty notices and consequential orders were issued and passed with wrong address, which cannot be sustained. Notice u/s 271(1)(b) and 271E are unsustainable in the eyes of law as assessee did not receive any notice u/s 148 and consequential notices being 143(2) and 141(1) of the Act which were issued by Ld.AO at wrong address. Therefore, assessee could not furnish any return of income in response. In our view, notice u/s 271(1)(b) and 271E also deserves to be quashed and set aside. Notice u/s 271(1)(c), is consequential to assessment order dated 29/02/2016, which we have already held to be bad in law as passed without granting proper opportunity of being heard to assessee. - Decided in favour of assessee.

Issues Involved:
1. Validity of re-assessment order and penalty orders due to improper service of notice.
2. Delay in filing appeals and applicability of Section 249(4)(b) of the Act.
3. Legality of penalty under Sections 271(1)(c), 271(1)(b), and 271E.
4. Computation of capital gains and interest under Sections 234-A, 234-B, and 234-C.
5. Validity of penalty under Section 271F for not filing the return of income.

Detailed Analysis:

1. Validity of Re-assessment Order and Penalty Orders:
The assessee contended that the re-assessment and penalty orders were invalid due to improper service of notice. The Tribunal noted that the notice under Section 148 was served at an incorrect address, which was not verified against the details available with the revenue, such as the PAN card address. Consequently, the re-assessment order dated 29/02/2016 was quashed for not following the principles of natural justice and 'audi alteram partem'. The Tribunal emphasized that the impugned notice under Section 148 issued at the wrong address was invalid, and the consequential assessment order deserved to be set aside.

2. Delay in Filing Appeals and Applicability of Section 249(4)(b) of the Act:
The assessee argued that the appeals were filed within the permissible time frame after obtaining certified copies of the orders and demand notices. The Tribunal observed that the impugned orders were not communicated to the assessee in time due to the wrong address. The Tribunal held that the assessee was not required to seek condonation of delay as the appeals were filed within 30 days from obtaining the certified copies. The Tribunal also noted that the provisions of Section 249(4)(b) were inapplicable as the assessee had challenged the reopening of the assessment and the computation of capital gains.

3. Legality of Penalty under Sections 271(1)(c), 271(1)(b), and 271E:
The Tribunal found that the penalty notices and consequential orders were issued and passed with the wrong address, rendering them unsustainable. Specifically, the notices under Sections 271(1)(b) and 271E were quashed as the assessee did not receive any notice under Section 148 and the consequential notices under Sections 143(2) and 141(1). The Tribunal held that the penalty under Section 271(1)(c) was also invalid as it was consequential to the quashed assessment order.

4. Computation of Capital Gains and Interest under Sections 234-A, 234-B, and 234-C:
The Tribunal did not adjudicate on the merits of the computation of capital gains and the interest levied under Sections 234-A, 234-B, and 234-C since the basis of the addition was quashed. Consequently, the issues related to computation became academic and were set aside.

5. Validity of Penalty under Section 271F for Not Filing the Return of Income:
The Tribunal observed that the penalty under Section 271F was imposed without appreciating that there was no requirement for the assessee to file a return of income for the year under appeal. The Tribunal quashed the penalty, noting that the assessee was prevented by reasonable cause from filing the return.

Conclusion:
The Tribunal allowed the appeals filed by the assessee, quashing the re-assessment order and the penalty orders due to improper service of notice and lack of adherence to the principles of natural justice. The Tribunal emphasized the importance of serving notices at the correct address and following due process of law. The appeals were pronounced allowed in the open court on 6th Nov, 2020.

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