PAN: case of I-VEN INTERACTIVE LIMITED (SC)- ADDRESS OF ASSESSEE - NOTICE SERVED AT ADDRESS AS PER PAN RECORD HELD VALID BY THE SUPREME COURT- VITAL DIRECTLY RELEVANT PROVISIONS NOT AT ALL REFERRED AND CONSIDERED SO JUDGMENT NEED RECONSIDERATION.

[CA DEV KUMAR KOTHARI]

2019 (10) TMI 785 - SUPREME COURT  -PRINCIPAL COMMISSIONER OF INCOME TAX, MUMBAI VERSUS M/S I-VEN INTERACTIVE LIMITED, MUMBAI

2018 (6) TMI 1666 - BOMBAY HIGH COURT - PR. COMMISSIONER OF INCOME TAX-6 VERSUS M/S. I-VEN INTERACTIVE LTD.

Provisions considered:

As per result of search in documents of reported judgments of the Supreme Court, High Court and Tribunal with headnotes, author found results for use of various words/ phrases indicating provisions considered /mentioned as follows:

Section(s)  - 62 results

Section 142(1) – 2 result

Section 143(1)  - 1 result

Section 143(2)  -48 results

Section 143(3) – 12 results.

Section 14A – 1 result

Section 292BB –7 results.

Section 260A -1 result

Sub-section -2 results

Rule  8 – 1 result                

  Form 18 of Companies Act – 9 results

The above provisions are not  directly related with PAN .

Provisions specific to PAN not considered.

In search of words in document of  three  judgments, author did not find   any count for provisions which are directly related to PAN and did not find any mention of the following provisions which are directly related to PAN:

Section 139A     

Rule 144            

Form 49A      

Form 49AA        

Therefore, we find that the judgment is based on provisions relating to assessment procedure and in particular about issue and service of notice. There is nothing in the judgment about procedure for application and allotment of PAN and changes relating to PAN.

Specific provision for intimation to AO      

We find specific provision which cast duty on assesse about  intimation to AO  about certain changes relating to information in records of PAN. The said relevant portion of S.139A is reproduced below with high lights added for relevance about change in address:       

From section 139A:

¹[Permanent account number.

139A. (1) Every person,-

XXX

(5) Every person shall-

XXXX

d) intimate the Assessing Officer any change in his address or in the name and nature of his business on the basis of which the permanent account number was allotted to him.

From above provision we find that the Every person who has obtained or has been allotted and is  holding  PAN will have to intimate the AO about any changes in:

1. His address,
2. Name  and
3. Nature of his business

If such change has taken place in comparison to information about above three points as furnished earlier on the basis of which PAN was allotted.

Per author -  it should also include any change after  any earlier changes in such information  as well. In simple words we can say that the person having PAN has to intimate the AO so as to keep informed the AO about latest information about three  informative points that is name, address and nature of business so as to keep details in PAN up to date.

No prescribed form and manner of intimation about changes:

On reading of provisions of the Act, Rules and related forms author could not find any specific manner  or format of intimation to be given.  Therefore, such information can be given in any convenient manner. After discussion with several assesses and tax consultants  author observes that uUsual manner of such intimation ,as adopted and in practice are:

1. ITR-  ITR is verified in prescribed manner on the date of verification by assesse so address and other information given in latest ITR filed can be considered as latest address and other information. In E-ITR information about mobile phone number, land line phone number, email id and bank accounts are also furnished which can be used in case of need. Many of assesse consider that in intimation of change in name, address and business through annual filing of ITR  is sufficient and effective compliance .

In this regard it is worth to mention that in some of ITR forms we find specific rows questioning if there is any change in name, if yes, assesse need to mention former name in prescribed row of the ITR form. This should be applicable and added in all ITR forms because there can be change in name of any type of assesse who is required to file ITR. 

2.  Letter: Letter can be given by PAN holder to the AO intimating changes in information on three points. Usually when there is time gap between change of address and ensuing filing of ITR, an advance intimation is given by assesse to the AO
3. In case of companies a change in name and / or  address can be intimated by filing copy of intimation of change of  name and / or address given to the Registrar of Companies.
4. MCA records- MCA records about name and address of company are public documents and are easily available to public, without costs. Public servants are also part of public.  Such information and many other relevant information about directors, phone numbers, email id etc. are available in master data of any company on website of MCA. MCA information can be considered by AO for issuing and serving notices if notice sent on address with AO is returned back.
5.  Recording on file:  Sometimes assesse / AR can also request the AO to mention new address or other information on the file maintained by AO and in practice such noting is used for further communication.
6. Any other convenient method like by email, letter sent by FAX, message from registered mobile phone.

 

Ground reality and majority view:

There have always been publicity and advertisement about requirement for obtaining and mentioning PAN. However, author could not recall any advertisement or even other noting

Even on websites of IT department about requirement as to change in name and address by PAN holders.

Ground reality is that generally assesse and his consultants consider giving information in ITR as latest information to the AO about name, address, and business. In fact about name information is also asked about former name, if any, in case of change in name but only in some of ITR forms and not in all ITR forms.

As per usual practice, address given in ITR is considered by AO for issuing notice.

Address mismatch:

In electronic filing of ITR, if address given in ITR does not match with address found in PAN records or other intimation, then the system should point out such mismatch before the ITR is uploaded. In comprehensive software of preparation and uploading of ITR tax payer can reasonably expect such messages for corrective action.

If there is any mismatch in address, then the AO should issue notice on address as per ITR also. Even in E-module of filing, processing and process of issue of notices such system can be easily incorporated to find out mismatch in address and to issue notices on new address, e-mail address etc.   When email id, and mobile phone number is available, notice can also be conveyed through email , SMS and other Apps.

 

Judgment of the Supreme Court:

As discussed above we find that any of provision relating to PAN , particularly:

 Section 139A   ,

 Rule 144 ,  

Form 49A     

Form 49AA       

 Were  not at all referred, discussed and / or considered by honorable Supreme Court. Ground reality about intimation about changes in name was also not discussed.

Author hopes that if these were properly referred, discussed and considered, the case of assesse would have been on much stronger foundation. Mere reliance on some rulings on technical ground was not enough and we find that due to lacking in non-mentioning of relevant provisions and ground reality  at any stage of assessment and appeal proceedings has caused reversal of concurrent orders/ judgments of the CIT(A), ITAT and High Court.

Therefore the judgment of honorable Supreme Court deserve reconsideration.

Correction in PAN information:

All assesses must take care to intimate the AO about any changes, in name, address and nature of business as recorded in PAN record so as to confirm updated  information on these aspects in PAN record.

 

2019 (10) TMI 785 - SUPREME COURT

PRINCIPAL COMMISSIONER OF INCOME TAX, MUMBAI VERSUS M/S I-VEN INTERACTIVE LIMITED, MUMBAI

Civil Appeal No. 8132 of 2019 ( Arising out of SLP (C) No. 3530/2019 )

Dated: - 18 October 2019

Validity of scrutiny assessment - Notices u/s 143(2) not issued on new address - HELD THAT:- In absence of any specific intimation to the Assessing Officer with respect to change in address and/or change in the name of the assessee, the Assessing Officer would be justified in sending the notice at the available address mentioned in the PAN database of the assessee, more particularly when the return has been filed under EModule scheme. It is required to be noted that notices under Section 143(2) of the 1961 Act are issued on selection of case generated under automated system of the Department which picks up the address of the assessee from the database of the PAN. Therefore, the change of address in the database of PAN is must, in case of change in the name of the company and/or any change in the registered office or the corporate office and the same has to be intimated to the Registrar of Companies in the prescribed format (Form 18) and after completing with the said requirement, the assessee is required to approach the Department with the copy of the said document and the assessee is also required to make an application for change of address in the departmental database of PAN, which in the present case the assessee has failed to do so.

Now so far as the submission on behalf of the assessee that with respect to the Assessment Years 2004-05 and 2005-06, communications and the assessment orders were sent at the new address and therefore the Assessing Officer was in the knowledge of the new address is concerned, the same has been sufficiently explained by the Revenue.

In view of our findings the impugned judgment and order passed by the High Court as well as the orders passed by the learned C.I.T (Appeals) and the I.T.A.T holding the assessment order bad in law on the aforesaid ground cannot be sustained and the same deserve to be quashed and set aside.

Judgment / Order

Hon’ble Uday Umesh Lalit, Hon’ble Indira Banerjee And Hon’ble M.R. Shah

JUDGMENT

M. R. Shah, J.

Leave granted.

2. Feeling aggrieved and dissatisfied with the judgment and order dated 27.06.2018 passed by the High Court of Judicature at Bombay in Income Tax Appeal No.94 of 2016, by which the High Court has dismissed the said appeal preferred by the Revenue and has confirmed the orders passed by the learned C.I.T (Appeals) as well as I.T.A.T quashing and setting aside the assessment order for A.Y. 200607, the revenue has preferred the present appeal.

3. That the respondent – assessee filed return of income for the Assessment Year 200607 on 28.11.2006 declaring total income of ₹ 3,38,71,716/. The said return was filed under E-Module Scheme and thereafter a hard copy of the same was filed on 05.12.2006. The return of income was accompanied with balance sheet and profit and loss account. The return was processed under Section 143(1) of the Income Tax Act, 1961 (hereinafter referred to as the ‘1961 Act’). That a notice under Section 143(2) of the 1961 Act was issued to the respondent-assessee on 05.10.2007. The notice was sent at the assessee’s address available as per the PAN database. That a further opportunity was provided to the assessee vide notice under Section 143(2) of the 1961 Act on 25.07.2008. The said notice was also issued to the assessee at the available address as per the PAN database. That thereafter, further notices under Section 142(1) of the 1961 Act were issued to the assessee on 23.01.2008, 25.07.2008 and 05.10.2008 along with questionnaires calling for various details and were duly served on the respondent-assessee company. In response to the said notice, the representative of the company appeared on 28.11.2008 and 04.12.2008. The assessee participated in the proceedings before the Assessing Officer. However, the assessee challenged the notice under Sections 143(2) and 142(1) of the 1961 Act on the ground that the said notices were not served upon the assessee as the assessee-company never received those notices and the subsequent notices served and received by the assessee-company were beyond the period of limitation prescribed under proviso to Section 143 of the 1961 Act.

3.1 That the Assessing Officer vide assessment order dated 24.12.2008 completed the assessment under Section 143(3) of the 1961 Act by making disallowance of ₹ 8,91,17,643/under Section 14A of the 1961 Act, read with Rule 8 of the Income Tax Rules and computed total income at ₹ 5,52,45,930/.

3.2 Being aggrieved by the assessment order dated 24.12.2008, the assessee preferred appeal before the learned C.I.T (Appeals). The learned C.I.T (Appeals) allowed the appeal vide order dated 23.12.2010 holding, inter alia, that the Assessing Officer completed the assessment under Section 143(3) of the 1961 Act, without assuming valid jurisdiction under Section 143(2) of the 1961 Act, and therefore, the assessment framed under Section 143(3) of the 1961 Act was invalid. The learned C.I.T (Appeals) observed that as the subsequent service of notice under Section 143(2) of the 1961 Act was beyond the period of limitation prescribed under the proviso to Section 143 of the 1961 Act and earlier no notices were served upon the assessee and/or received by the assessee as the same were sent at the old address and in the meantime company-assessee changed its address and therefore the assessment order was bad in law. The Revenue preferred appeal before the Income Tax Appellate Tribunal, which came to be dismissed by the learned I.T.A.T. vide order dated 19.01.2015. The order passed the learned C.I.T (Appeals) as well as I.T.A.T. have been confirmed by the High Court, by the impugned judgment and order. Hence, the Revenue has preferred the present appeal.

4. Shri H. Raghavendra Rao, learned Advocate appearing on behalf of the Revenue has vehemently submitted that the impugned judgment and order passed by the High Court dismissing the appeal and thereby confirming the orders passed by the learned C.I.T (Appeals) and I.T.A.T holding that the assessment order was bad in law, is contrary to the provisions of Section 143(2) of the 1961 Act.

4.1 It is further submitted that the Assessing Officer sent the notice under Section 143(2) of the 1961 Act to the assessee at the available address as per the PAN database. It is submitted that as such there was no intimation by the assessee to the Assessing Officer with respect to change of address. It is submitted therefore that notice under Section 143(2) of the 1961 Act was sent to the assessee on the available address as per the PAN database. It is submitted therefore that once notice under Section 143(2) of the 1961 Act was issued and sent to the assessee on the available address as per the PAN database, it can be said to be a sufficient compliance of the relevant provisions of the 1961 Act, more particularly Section 143(2) of the 1961 Act.

4.2 It is further submitted that as such the High Court has not properly appreciated the fact that the alleged communication dated 06.12.2005 from the respondent-assessee to the Assessing Officer intimating new address of the assessee was never received by the Assessing Officer. It is submitted that even today also the assessee is not in a position to produce the said communication. It is submitted therefore the respondent-assessee has failed to prove that the alleged communication dated 06.12.2005 was, in fact, sent to the Assessing Officer, intimating about new address.

4.3 It is further submitted by the learned Advocate appearing on behalf of the Revenue that, as such, the learned C.I.T (Appeals) has heavily relied upon the alleged communication dated 06.12.2005 intimating the change of address to the Assessing Officer by the assessee, however, the communication dated 06.12.2005 is not forthcoming and has not been produced. It is submitted therefore that in the facts and circumstances of the case the Assessing Officer was justified in sending the notices under Section 143(2) of the 1961 Act at the available address as per the PAN database. It is submitted therefore that the learned C.I.T (Appeals), I.T.A.T and the High Court have committed a grave error in holding that the assessment order is bad in law as the notice under Section 143(2) of the 1961 Act was beyond the period of limitation.

4.4 It is further submitted that as such thereafter the assessee did participate in the assessment proceedings and therefore the learned C.I.T (Appeals) ought to have considered the appeal on merits and ought not to have set aside the assessment order solely on the ground that the assessment order is bad in law.

4.5 Making the above submissions, it is prayed to allow the present appeal.

5. Shri S.K. Bagaria, learned Senior Advocate appearing on behalf of the respondent-assessee has made strenuous efforts to support the orders passed by the learned C.I.T (Appeals) and confirmed by the I.T.A.T. and the High Court. It is submitted that as such the Assessing Officer was aware of the new address of the assessee and therefore the Assessing Officer was required to send the notices on the new address. It is submitted that instead the Assessing Officer sent the notice at the old address and therefore the same was never served upon the assessee. It is submitted that by the time the subsequent notice was served upon the assessee, the notice under Section 143(2) of the 1961 Act was barred by limitation as provided under Section 143(2) of the 1961 Act. Therefore, the learned C.I.T (Appeals), I.T.A.T and the High Court are right in holding that the assessment order was bad in law.

5.1 Learned Senior Advocate appearing on behalf of the assessee has further submitted that as such the change of address and change in the name of the assessee-company was intimated to the Registrar of Companies in Form18. It is submitted therefore in fact the name of the company was changed and the change in the address has been established and proved.

5.2 Shri Bagaria, learned Senior Advocate has further submitted that the Assessing Officer was in the knowledge of the new address, which is evident from the fact that the Assessment Orders for A.Y 200405 and A.Y. 200506 were sent at the new address.

5.3 Relying upon the decision of this Court in the case of Assistant Commissioner of Income Tax v. Hotel Blue Moon reported in (2010) 3 SCC 259, it is submitted by the learned Senior Advocate for the assessee that as held by this Court the issuance of the notice under Section 143(2) of the 1961 Act within the time prescribed in the proviso to Section 143(2) of the 1961 Act is must and mandatory. It is submitted that therefore when it was found that notice under Section 143(2) of the 1961 Act was not served upon the assessee within the time prescribed in the proviso to Section 143(2) of the Act, the assessment order was bad in law and the same was rightly set aside by the learned C.I.T (Appeals), confirmed up to High Court.

5.4 Making the above submissions and relying upon the aforesaid decision of this Court, it is prayed to dismiss the present appeal.

6. We have heard the learned counsel for the respective parties at length.

6.1 At the outset, it is required to be noted that notice under Section 143(2) of the 1961 Act was sent by the Assessing Officer to the assessee at the address as mentioned in the PAN database on 05.10.2007 and the same was within the time limit prescribed in proviso to Section 143(2) of the 1961 Act. However, it was the case on behalf of the assessee that the said notice was not served upon the assessee as the assessee changed its name and address and shifted to new address prior thereto and therefore the said notice was not served upon the assessee and by the time when subsequently the notices were served upon the assessee, notice under Section 143(2) of the 1961 Act was barred by the period prescribed in proviso to Section 143(2) of the 1961 Act and therefore the assessment order is bad in law. It was the case on behalf of the assessee that vide communication dated 06.12.2005 the assessee intimated to the Assessing Officer about the new address and despite the same the Assessing Officer sent the notice at the old address. However, it is required to be noted that the alleged communication dated 06.12.2005 is not forthcoming. Neither the same was produced before the Assessing Officer nor even the same has been produced before this Court. In the affidavit also, filed in compliance with order dated 21.08.2019, the assessee has stated that the alleged communication dated 06.12.2005 is not available. Thus, the assessee has failed to prove the alleged communication dated 06.12.2005. The only document available is Form No.18 filed with the ROC. Filing of Form18 with the ROC cannot be said to be an intimation to the Assessing Officer with respect to intimation of change in address. It appears that no application was made by the assessee to change the address in the PAN data base and in the PAN database the old address continued. Therefore, in absence of any intimation to the Assessing Officer with respect to change in address, the Assessing Officer was justified in issuing the notice at the address available as per the PAN database. Therefore, the Assessing Officer cannot be said to have committed any error and in fact the Assessing Officer was justified in sending the notice at the address as per the PAN database. If that is so, the notice dated 05.10.2007 can be said to be within the period prescribed in proviso to Section 143(2) of the 1961 Act. Once the notice is issued within the period prescribed as per the proviso to Section 143(2) of the Act, the same can be said to be sufficient compliance of Section 143(2) of the 1961 Act. Once the notice is sent within the period prescribed in the proviso to Section 143(2) of the 1961 Act, in that case, actual service of the notice upon the assessee thereafter would be immaterial. In a given case, it may happen that though the notice is sent within the period prescribed, the assessee may avoid actual service of the notice till the period prescribed expired. Even in the relied upon case by the learned Senior Advocate for the assessee in the case of Hotel Blue Moon (supra), it is observed that the Assessing Officer must necessarily issue notice under Section 143(2) of the 1961 Act within the time prescribed in the proviso to Section 143(2) of the 1961 Act. Therefore, in the facts and circumstances of the case, the High Court is not justified in dismissing the appeal and confirming the orders passed by the learned C.I.T (Appeals) and the I.T.A.T. setting aside the assessment order solely on the ground that the assessment order is bad in law on the ground that subsequent service of notice upon the assessee under Section 143(2) of the 1961 Act was beyond the time prescribed in the proviso to Section 143(2) of the 1961 Act.

7. Now so far as the observations made by the High Court while concurring with the view of the learned Tribunal that merely by filing of return of income with the new address, it shall be enough for the assessee to discharge its legal responsibility for observing proper procedural steps as per the Companies Act and the Income Tax Act is concerned, we are of the opinion that mere mentioning of the new address in the return of income without specifically intimating the Assessing Officer with respect to change of address and without getting the PAN database changed, is not enough and sufficient. In absence of any specific intimation to the Assessing Officer with respect to change in address and/or change in the name of the assessee, the Assessing Officer would be justified in sending the notice at the available address mentioned in the PAN database of the assessee, more particularly when the return has been filed under EModule scheme. It is required to be noted that notices under Section 143(2) of the 1961 Act are issued on selection of case generated under automated system of the Department which picks up the address of the assessee from the database of the PAN. Therefore, the change of address in the database of PAN is must, in case of change in the name of the company and/or any change in the registered office or the corporate office and the same has to be intimated to the Registrar of Companies in the prescribed format (Form 18) and after completing with the said requirement, the assessee is required to approach the Department with the copy of the said document and the assessee is also required to make an application for change of address in the departmental database of PAN, which in the present case the assessee has failed to do so.

8. Now so far as the submission on behalf of the assessee that with respect to the Assessment Years 2004-05 and 2005-06, communications and the assessment orders were sent at the new address and therefore the Assessing Officer was in the knowledge of the new address is concerned, the same has been sufficiently explained by the Revenue.

9. In view of our findings, recorded hereinabove, the impugned judgment and order passed by the High Court as well as the orders passed by the learned C.I.T (Appeals) and the I.T.A.T holding the assessment order bad in law on the aforesaid ground cannot be sustained and the same deserve to be quashed and set aside. As the learned C.I.T (Appeals) has not considered the other grounds on merits and has not considered the appeal on merits, the matter is required to be remanded to the learned C.I.T (Appeals) to consider the appeal on merits, in accordance with law.

10. Accordingly, the present Appeal is Allowed. The Impugned Judgment and Order passed by the High Court as well as the orders passed by the C.I.T (Appeals) and the I.T.A.T are hereby quashed and set aside. The matter is remanded to the learned C.I.T (Appeals) to consider the Appeal on merits on other grounds, in accordance with law. No costs.

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Citations: in 2019 (10) TMI 785 - Supreme Court

1. Assistant Commissioner of Income Tax & Anr. Versus M/s. Hotel Blue Moon - 2010 (2) TMI 1 - Supreme Court
2. Pr. Commissioner of Income Tax-6 Versus M/s. I-Ven Interactive Ltd. - 2018 (6) TMI 1666 - BOMBAY HIGH COURT
3. ACIT-10 (1) , Mumbai Versus M/s. I-Ven Interactive Ltd. - 2015 (1) TMI 1431 - ITAT MUMBAI

 

2018 (6) TMI 1666 - BOMBAY HIGH COURT

PR. COMMISSIONER OF INCOME TAX-6 VERSUS M/S. I-VEN INTERACTIVE LTD.

INCOME TAX APPEAL NO. 94 OF 2016

Dated: - 27 June 2018

Notice u/s 143(2) not served upon the appellant within the period specified under the proviso to subsection (2) of Section 143 - Tribunal cancelled the assessment order - HELD THAT:- Commissioner of Income Tax (Appeals) records the fact that besides the return of income indicating the new address, the appellant had by earlier letter dated 6th December, 2005 intimated the change of its address to the Assessing Officer and also requested a issue of fresh PAN. Besides, the Assessing Officer had in fact served at the new address, the assessment order under Section 143(3) of the Act on 30th November, 2006 in respect of Assessment Year 2004-05.

This was much prior to the statutory notice issued on 5th October, 2007 and 25th July, 2008 at the address of the respondent as recorded in the PAN. The respondent had taken up the objection with regard to non-service of notice during the assessment proceedings. Thus, as rightly held by the impugned order of the Tribunal that, in view of the proviso to Section 292(BB) of the Act, the notice not being served within time, cannot be deemed to be valid. Therefore, no fault can be found with the impugned order of the Tribunal.

Judgment / Order

M.S. SANKLECHA AND SANDEEP K. SHINDE, JJ.

For the Appellant : Mr. Suresh Kumar, Advocate

ORDER

P.C.:

1. This Appeal under Section 260A of the Income Tax Act, 1961 (the Act), challenges the order dated 19^th January, 2015 passed by the Income Tax Appellate Tribunal (the Tribunal). The impugned order dated 19th January, 2015 is in respect of Assessment Year 2006-07.

2 Mr. Suresh Kumar, Learned Counsel for the Revenue states that although numerous questions have been formulated in the Memo of Appeal, the first question therein is being pressed as the other questions are merely different facets of the first question, for our consideration:

“(a) Whether on the facts and in the circumstance of the case and in law, the Tribunal was right in cancelling the assessment order by holding that the notices under Section 143(2) even when duly accepted by the associate of the assessee on the address available as per PAN database, the assessment framed under Section 143(3) cannot be held to be a valid assessment ? ”

3 The impugned order of the Tribunal dismissed the Revenue's Appeal before it by holding that as the notice under Section 143(2) of the Act was not served upon the appellant within the period specified under the proviso to subsection (2) of Section 143 of the Act, the order dated 24^th December, 2012 is bad in law.

4 The respondent Assessee had filed its return of income for Assessment Year 200607 giving its new address therein. However, the Assessing Officer served the notice within the stipulated time under Section 143(2) of the Act not on the address in the return but upon the address in the PAN record. The above notice sent by the Revenue within the prescribed time was not received by the respondent as it ceased to be the address of the respondent. Thereafter, admittedly beyond the time prescribed under Section 143(2) of the Act, the notice was served upon the respondent. During the Assessment proceedings, the respondent did raise objections as to the jurisdiction to assess the appellant under Section 143(3) of the Act. However, the Assessing Officer did not accept it and passed an order dated 24^th December, 2012 under Section 143(3) of the Act.

5 The justification of the Revenue is that, they served the notice dated 5th October, 2007 at the address available in its PAN records. Therefore, the notice under Section 143(2) of the Act sent on the earlier address was correct. Besides, the respondent participated in the assessment proceedings and their action is protected by Section 292BB of the Act.

6. We find that, the Commissioner of Income Tax (Appeals) records the fact that besides the return of income indicating the new address, the appellant had by earlier letter dated 6th December, 2005 intimated the change of its address to the Assessing Officer and also requested a issue of fresh PAN. Besides, the Assessing Officer had in fact served at the new address, the assessment order under Section 143(3) of the Act on 30th November, 2006 in respect of Assessment Year 2004-05. This was much prior to the statutory notice issued on 5th October, 2007 and 25th July, 2008 at the address of the respondent as recorded in the PAN. The respondent had taken up the objection with regard to nonservice of notice during the assessment proceedings. Thus, as rightly held by the impugned order of the Tribunal that, in view of the proviso to Section 292(BB) of the Act, the notice not being served within time, cannot be deemed to be valid. Therefore, no fault can be found with the impugned order of the Tribunal.

7 In the above view, the proposed question of law does not give rise to any substantial question of law. Thus, not entertained.

8 Appeal dismissed. No order as to costs.

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Citations: in 2018 (6) TMI 1666 - BOMBAY HIGH COURT

1. ACIT-10 (1) , Mumbai Versus M/s. I-Ven Interactive Ltd. - 2015 (1) TMI 1431 - ITAT MUMBAI

 

 

2015 (1) TMI 1431 - ITAT MUMBAI

ACIT-10 (1) , MUMBAI VERSUS M/S. I-VEN INTERACTIVE LTD.

I.T.A. No. 1712/M/2011

Dated: - 19 January 2015

Notice u/s 143(2) not to the correct address - whether the Assessing Officer rightly assumed jurisdiction when he issued statutory noticed to the address as given in the PAN records (BKC Address) and not the address as per the return of income i.e., Prabhadevi address - HELD THAT:- During assessment proceedings, the appellant vide letter dated 28.11.2008 brought to the notice of the Assessing Officer that the notice u/s 143(2) dated 5.10.2007 was not served o the appellant and therefore, the proceedings u/s 143(2) were bad in law. In view of the appellant’s raising such objections during assessment proceedings, the provisions of section 292BB were not applicable and section 292BB could not have given validity to the illegality / irregularity of the notices.

In view of discussion made above, it is held that the Assessing Officer completed assessment u/s 143(3) of the Act without assuming valid jurisdiction u/s 143(2) of the Act. Appeal of the Revenue is dismissed.

Judgment / Order

SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER

For the Appellant : Shri Sachchidananda Dubey, DR

For the Respondent : None

ORDER

PER D. KARUNAKARA RAO, AM:

This appeal filed by the Revenue on 2.3.2011 is against the order of the CIT (A)-21, Mumbai dated 23.12.2010. In this appeal, Revenue raised the following grounds which read as under:

“1.(i) On the facts and in the circumstances of the case and in law, the Ld CIT (A) erred in holding that the assessment framed u/s 143(3) as invalid without appreciating that the notice u/s 143(2) dated 5.10.2007 for the assessment year 2006-07 had been issued and served before the3 expiry of 12 months from the end of the month in which the return of income for the said assessment year had been filed by the assessee.

(ii) On the facts an in the circumstances of the case and in law, the Ld CIT (A) failed to appreciate that the notice u/s 143(20 dated 5.10.2007 has been accepted in the old address of the assessee company at ICICI Towers, Bandra Kurla Complex by ICICI Bank Ltd., an associate concer5n on behalf of the assessee company well before the expiry of 12 months from the end of the month in which the return of income had been filed by the assessee.

(iii) On the facts and in the circumstances of the case and in law, the Ld CIT (A) failed to appreciate that it only vide letter dated 11.11.2008 that ICICI Bank Ltd had informed the Assessing Officer that the office of the assessee company is no longer situated in the premises of ICICI Bank Towers and they had been given to understand by the assessee company that the change of address has been communicated to the Income Tax Office and hence all correspondence pertaining to the assessee company should be served at the said address of the company.”

2. In this appeal, Revenue raised the objection against the conclusions drawn by the CIT (A) in connection with the issue of notice u/s 143(2) of the Act within the specified period of 12 months.

3. Before us, none appeared on behalf of the assessee to represent the case. Considering the issue involved in the grounds and the undisputed facts brought in by the Revenue Authorities in their orders, we find the appeal can be disposed of with the help of the Ld DR. At the outset, Ld DR mentioned the undisputed fact that the assessee filed the return of income giving the address as “Ground Floor, Stanrose House, A.M. Marg, Prabhadevi, Mumbai” and the same is a changed address of the assessee. Assessee communicated this changed address to the ITO in 2005. Ignoring these facts, Assessing Officer issued statutory notices on 5.10.2007, 25.7.2008 to the address as per the PAN records i.e., “M/s. ICICI E-payments Ltd., ICICI Towers, Bandra Kurla Complex, Mumbai-51”. Now the limited issue to be decided by us relates to whether the Assessing Officer rightly assumed jurisdiction when he issued statutory noticed to the address as given in the PAN records (BKC Address) and not the address as per the return of income i.e., Prabhadevi address. After narrating the relevant facts, CIT (A) granted relief holding that the impugned statutory notices issued without jurisdiction. Para 3.3 of the CIT (A)’s order is relevant and the same is self-explanatory. On perusal of the said para 3.3, we find it relevant to extract the relevant portion of the said para for the sake of completeness of this order and the same reads as under:

“3.3……….During assessment proceedings, the appellant vide letter dated 28.11.2008 brought to the notice of the Assessing Officer that the notice u/s 143(2) dated 5.10.2007 was not served o the appellant and therefore, the proceedings u/s 143(2) were bad in law. In view of the appellant’s raising such objections during assessment proceedings, the provisions of section 292BB were not applicable and section 292BB could not have given validity to the illegality / irregularity of the notices.

In view of discussion made above, it is held that the Assessing Officer completed assessment u/s 143(3) of the Act without assuming valid jurisdiction u/s 143(2) of the Act. In the facts and circumstances, the assessment framed u/s 143(3) of the Act was invalid. This ground of appeal is allowed.”

4. Considering the above facts as well as the decision of the CIT (A), we find the same are reasonable and we find no infirmity from the order of the CIT (A). Therefore, in our opinion the decision taken by the CIT (A) is fair and reasonable and it does not call for any interference. Accordingly, grounds raised by the Revenue are dismissed.

5. In the result, appeal of the Revenue is dismissed.

Order pronounced in the open court on 19th January, 2015.