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2005 (3) TMI 394 - AT - Income TaxService of reassessment notice beyond the period of limitation - validity of the notice issued u/s 148 as well as the validity of the assessment order - challenged the jurisdiction of the AO in issuing the notice u/s 148. HELD THAT - According to the assessee the notice was not sent to the head office of the company but to the factory which was closed and therefore it cannot be said that the notice was addressed to the principal officer of the company at its head office. The other contention of the learned counsel was that the notice was not served upon any director of the company or any person authorized by the company to receive the same. These arguments of the assessee also find force. On perusal of the notice it is found that the notice was received by Shri Ajay Pratap Singh on 18th Dec. 1998. The service was effected by the Income-tax Inspector. Below the signatures of the recipient SISUP is also mentioned. On the notice itself it is written that the factory was not working and only security guards were present. Thus service had been effected upon the security guard who was not authorized to receive notice on behalf of the assessee-company. Neither the process serving officer nor the concerned ITO has recorded any satisfaction about the service of this notice. Thus the provisions of s. 282 of the IT Act referred we are of the view that notice has not been properly served upon the assessee. It may be pointed out that service of valid notice is a prerequisite condition for initiating proceedings u/s 147. In the case of CIT Vs. Mintu Kalita 2001 (2) TMI 39 - GAUHATI HIGH COURT the Hon ble Gujarat High Court has held that service of notice prescribed by s. 148 of the IT Act for the purpose of initiating proceedings for reassessment is not a mere procedural requirement; it is a condition precedent to the initiation of the proceedings for assessment u/s 147 of the IT Act. Thus the first plea raised by the assessee deserves to be accepted. Jurisdiction of the AO in issuing the notice u/s 148 - The learned counsel also pointed out that even the AO was not confident with his jurisdiction over the matter and therefore he wrote letter dt.28th March 1995 asking the assessee to explain why the return had been filed with the ITO Ward-1 Bulandshahar without any application for transfer of jurisdiction and without any order u/s 127 of the IT Act for the change of jurisdiction. In view of above the assessee s appeal stands allowed as indicated above.
Issues Involved:
1. Validity of the notice issued under section 148. 2. Jurisdiction of the Assessing Officer (AO) to issue the notice. 3. Service of the notice to the assessee. 4. Reason to believe that income had escaped assessment. 5. Legality of the assessment order. Detailed Analysis: 1. Validity of the Notice Issued Under Section 148: The assessee challenged the validity of the notice issued under section 148 on several grounds, including jurisdiction and service of the notice. The Tribunal found that the notice was not properly served upon the assessee, as it was addressed to the factory premises, which was closed, and received by a security guard who was not authorized to accept it. According to section 282 of the IT Act, the notice should be addressed to the principal officer of the company at its principal office. Therefore, the Tribunal held that the service of the notice was not valid, making the assessment null and void. 2. Jurisdiction of the Assessing Officer to Issue the Notice: The assessee argued that the ITO, Bulandshahar, did not have jurisdiction to issue the notice under section 148, as the company's registered office and principal place of business were in Delhi. The Tribunal noted that the assessee had filed returns in Delhi for earlier and subsequent assessment years, and the assessments were completed by the Delhi AO. The Tribunal found that the ITO, Bulandshahar, was not confident about his jurisdiction and had sought an explanation from the assessee regarding the filing of the return in Bulandshahar. Consequently, the Tribunal held that the ITO, Bulandshahar, did not have the jurisdiction to issue the notice under section 148. 3. Service of the Notice to the Assessee: The Tribunal emphasized that valid service of notice is a prerequisite for initiating proceedings under section 147. The notice in question was served to a security guard at the factory premises, which was closed, and not to the principal officer of the company at its principal office. The Tribunal referred to section 282 of the IT Act, which stipulates that the notice should be addressed to the principal officer of the company. The Tribunal concluded that the notice was not properly served, rendering the assessment proceedings invalid. 4. Reason to Believe that Income Had Escaped Assessment: The assessee contended that the AO did not have any reason to believe that income chargeable to tax had escaped assessment due to omission or failure on the part of the assessee. The Tribunal did not specifically address this issue in detail, as it found that the notice was not validly served and the AO did not have jurisdiction. However, it is implicit in the Tribunal's decision that the procedural lapses in serving the notice and the jurisdictional issues overshadowed the AO's reasons for reopening the assessment. 5. Legality of the Assessment Order: Given the Tribunal's findings on the invalid service of notice and lack of jurisdiction, it declared the assessment made without effecting valid service of notice under section 148 as null and void. Consequently, the Tribunal quashed the assessment order. The Tribunal did not adjudicate the other grounds on merit, as they remained of academic interest only due to the primary findings on the validity of the notice and jurisdiction. Conclusion: The Tribunal allowed the assessee's appeal, quashing the assessment order for the assessment year 1995-96 due to improper service of notice and lack of jurisdiction by the ITO, Bulandshahar. The Tribunal emphasized the importance of adhering to procedural requirements under section 282 of the IT Act for valid service of notice and the necessity for the AO to have proper jurisdiction to issue such notices.
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