2021 (3) TMI 1173 - HC - Income Tax

Reopening of assessment u/s 147 - no valid service of notice on the assessee strictly in terms of Section 148 read with Section 282(1) - HELD THAT - In the case on hand the pivotal question is whether Section 148 notice was actually served upon the writ applicant or not. The Revenue itself has conceded that it was not served upon the writ applicant at any point of time. In such circumstances this decision in the case of Rajesh Sunderdas Vaswani 2016 (6) TMI 701 - GUJARAT HIGH COURT is hardly of any avail. In the case on hand the assessee has no PAN. As noted above this is a case of Non PAN. The picture is now abundantly clear. The Revenue may be justified in taking cognizance of the sale transaction of the agricultural land which at one point of time was owned by the assessee herein. This agricultural land we are talking about is situated at Kalol District Gandhinagar. The only mistake that the department committed was to dispatch the notice under Section 148 of the Act to the address at Kalol Gandhinagar and not to the residential address of the writ applicant at village Khorsam Taluka Chanasma District Patan. In such circumstances it is obvious that the writ applicant could never be said to have receive such notice. - Decided in favour of assessee.

Issues Involved:
1. Validity of service of notice under Section 148 of the Income Tax Act, 1961.
2. Jurisdictional requirement of notice under Section 148.
3. Burden of proof for service of notice.
4. Applicability of Section 292BB of the Income Tax Act, 1961.

Issue-wise Detailed Analysis:

1. Validity of Service of Notice under Section 148:
The petitioner contended that no notice under Section 148 was served upon them, which is a prerequisite for reopening an assessment under Section 147 of the Income Tax Act, 1961. The respondent argued that the notice was sent to the petitioner’s address at Kalol, Gandhinagar, but it was returned unserved. The court emphasized that the service of notice is mandatory and must be proven by the Revenue. The notice should have been sent to the petitioner’s residential address at village Khorsam, Taluka Chanasma, District Patan, as per the sale deed.

2. Jurisdictional Requirement of Notice under Section 148:
The court examined whether the service of notice under Section 148 is a jurisdictional requirement. Citing the Supreme Court's decision in R.K. Upadhyaya vs. Shanhai P. Patel, it was reiterated that reassessment cannot proceed without the service of notice. The court concluded that the service of notice is a jurisdictional requirement, and without it, the reassessment proceedings are invalid.

3. Burden of Proof for Service of Notice:
The burden of proving that the notice was served lies with the Revenue. The court referred to several judicial precedents, including Commissioner of Income Tax (Central)-I vs. Chetan Gupta, which established that the Revenue must demonstrate that the notice was served on the assessee or their duly authorized representative. The court found that the Revenue failed to prove the service of notice in this case.

4. Applicability of Section 292BB of the Income Tax Act, 1961:
Section 292BB deems notice to be valid if the assessee appears in any proceeding or cooperates in any inquiry relating to an assessment or reassessment. However, this does not apply if the assessee raises an objection before the completion of such assessment or reassessment. In this case, the petitioner raised an objection before the assessment was completed, and therefore, Section 292BB did not apply. The court held that the Revenue could not rely on the deeming provisions of Section 292BB.

Conclusion:
The court allowed the writ application, quashing the order dated 1st November 2018, which disposed of the petitioner’s objections against the reopening proceedings. The court held that the notice under Section 148 was not served on the petitioner, rendering the reassessment proceedings invalid. The writ application was disposed of accordingly.

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