2017 (11) TMI 569 - HC - Income Tax

Non-service of notice u/s 148 within the prescribed time - Whether the ITAT has erred in not having considered the issue of non-service of notice u/s 148 within the prescribed time frame despite this fact emerging from the assessment record? - Held that - Having considered the order, the first contention that notice was not served, is not open after the remand order. In our considered opinion, the view taken by the Tribunal is just and proper. The question is required to be answered in favour of the department against the assessee.

Summary

Issues:
1. Validity of notice u/s 148 served within prescribed time frame.
2. Disallowance of loss in trading of Mustard.
3. Consideration of non-service of notice u/s 148 within prescribed time frame.
4. Objection regarding service of notice u/s 147/148.

Issue 1: Validity of notice u/s 148 served within prescribed time frame:
The appellant challenged the Tribunal's decision affirming the AO's order dismissing the appeal. The appellant contended that the notice served on a specific date was not known to them, but the CIT(A) confirmed that the notice was indeed served at the business premises. The CIT(A) dismissed the appeal citing the appellant's failure to file returns and the substantial income received. The Tribunal held that the appellant could not raise the same contention again. The respondent supported the order by highlighting the department's agreement in a previous remand order regarding the notice being served. The court considered the arguments and relied on precedents from the Delhi and Jammu Kashmir High Courts to uphold the Tribunal's decision, stating that the view taken was just and proper.

Issue 2: Disallowance of loss in trading of Mustard:
The appellant raised concerns about the disallowance of the loss suffered in trading of Mustard through a specific entity, despite confirmation from the entity itself. The court framed questions regarding the justification of disallowance and the consideration of the issue of non-service of notice within the prescribed time frame. The Tribunal's decision was based on the belief that the appellant could not raise the objection again, leading to the dismissal of the appeal.

Issue 3: Consideration of non-service of notice u/s 148 within prescribed time frame:
The appellant contended that the notice served was not known to them, but the CIT(A) confirmed its service at the business premises. Despite objections raised before the Tribunal, the previous remand order and the department's stance on notice service were considered. The court upheld the Tribunal's decision based on the view that the appellant could not raise the objection again.

Issue 4: Objection regarding service of notice u/s 147/148:
The appellant's objection regarding the service of notice u/s 147/148 was rejected by the CIT(A) and the Tribunal. The court considered the appellant's arguments, the previous remand order, and the department's position on notice service. Relying on precedents, the court upheld the Tribunal's decision, stating that the view taken was just and proper.

In conclusion, the High Court dismissed the appeals, upholding the Tribunal's decision on the issues raised by the appellant. The court's analysis was based on legal precedents, the department's actions, and the facts presented in the case, leading to a judgment in favor of the department against the assessee.