2015 (9) TMI 1064 - HC - Income Tax

Validity of reopening of assessment - photocopy of the notice was given to the Assessee during the re-assessment proceedings - sufficient service of notice on the Assessee or not? - Held that - In light of the law explained by the Supreme Court in R.K. Upadhyaya v. Shanbhai P. Patel (1987 (4) TMI 5 - SUPREME Court) which has in turn been followed by this Court in Chetan Gupta (2015 (9) TMI 756 - DELHI HIGH COURT), the requirement of both the issuance and the service of such upon the Assessee for the purposes of Section 147 and 148 of the Act are mandatory jurisdictional requirements . The mere fact that an Assessee participated in the re-assessment proceedings despite not having been issued or served with the notice under Section 148 of the Act in accordance with law will not constitute a waiver of the said jurisdictional requirement. On facts, therefore, the Court finds no legal error committed by the ITAT in holding that there was no proper service of notice on the Assessee under Section 148 of the Act. - Decided in favour of assessee.

Summary

Issues:
1. Exemption application subject to exceptions.
2. Condonation of delay in re-filing ITA Nos. 665/2015 & 666/2015.
3. Determination of whether notice under Section 148 of the Income Tax Act was duly issued and served.

Analysis:
1. The Court allowed the exemption application subject to just exceptions and disposed of the application.
2. The delays in re-filing ITA Nos. 665/2015 & 666/2015 were condoned based on the reasons stated in the applications, and the Court disposed of the related applications.
3. The main issue revolved around the determination of whether the notice to the Assessee under Section 148 of the Income Tax Act was properly issued and served. The Court emphasized that the notice and service are jurisdictional requirements that must be mandatorily complied with, not mere procedural formalities. The Court cited a previous decision to summarize the legal position, highlighting the importance of proper service of notice for reassessment proceedings. The Court noted that the burden is on the Revenue to show proper service of notice, which was not discharged in this case. It was established that reassessment proceedings without proper notice are invalid and liable to be quashed. The Court found that the notice was not issued at the correct address, even though the Assessee had informed the Assessing Officer of the address change. The Court rejected the argument that the Assessee should have updated the PAN database with the new address, emphasizing that the AO was aware of the change and still failed to issue the notice at the correct address. The Court held that providing a photocopy of the notice during reassessment proceedings does not constitute sufficient service of notice as required by law. Consequently, the Court dismissed the appeals, finding no substantial question of law for determination.

This detailed analysis of the judgment highlights the issues involved, the legal principles applied, and the Court's reasoning leading to the dismissal of the appeals.