2004 (12) TMI 28 - HC - Income Tax

Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law in holding that neither a notice under section 148 of the Income-tax Act, 1961, had been issued to the assessee nor had it been validly served? - A notice contemplated under section 148 of the Act is a jurisdictional notice and is not curable under section 292B of the Act, if it was not served in accordance with the provisions of the Act - we find that the order of the Tribunal is legally sound. We, therefore, answer the question in the affirmative, i.e., against the Revenue and in favour of the assessee

Summary

Issues:
Validity of notice under section 148 of the Income-tax Act, 1961 and its service on the assessee.

Analysis:
The judgment pertains to a reference made by the Income-tax Appellate Tribunal, Allahabad, regarding the correctness of the notice issued under section 148 of the Income-tax Act, 1961, and its valid service to the assessee for the assessment year 1964-65. The case involved a joint Hindu family known as M/s. Shital Prasad Kharag Prasad, with a complex history of partition and succession. The dispute arose from reassessment proceedings under section 147 of the Act, concerning the capital gains on a property acquired by the Land Acquisition Officer. The Income-tax Officer charged the capital gains for the assessment year 1967-68, but the Tribunal set aside this order, stating that the gains were taxable in 1964-65. A notice under section 148 was issued in 1976, but a question emerged regarding its validity and service due to the death of a key family member, Shri J.B. Gupta, in 1974.

The Commissioner of Income-tax (Appeals) and the Tribunal found that a valid partition had occurred in the family, and notices under the Income-tax Act should have been served on all adult family members before the partition. The Department challenged this decision, citing various legal precedents to support the validity of the notice served. However, the court examined these cases and concluded that they were not relevant to the present situation, as the essential issue was the service of a valid notice under section 148. The court emphasized that the service of a valid notice is fundamental for initiating reassessment proceedings and must be served on the appropriate individuals as per the law.

The court referred to legal principles established in previous cases, highlighting that the notice under section 148 is a jurisdictional requirement for assessment proceedings under section 147. Any defect in the notice cannot be rectified by subsequent actions of the Income-tax Officer. The court also discussed the applicability of section 292B of the Act, emphasizing that it does not cure errors related to the service of notices. Ultimately, the court upheld the Tribunal's decision, stating that the notice in question was not served in accordance with the Act's provisions, thereby rendering the reassessment proceedings invalid. The judgment favored the assessee, and no costs were awarded.

In conclusion, the judgment delves into the intricacies of serving a valid notice under section 148 of the Income-tax Act, emphasizing the importance of compliance with legal requirements for initiating reassessment proceedings. The court's analysis of relevant legal precedents and principles underscores the significance of proper notice service in maintaining the jurisdiction and validity of assessment proceedings.