2019 (2) TMI 1064 - AT - Income Tax

Reopening of assessment - absence of service of notice issued u/s 148 - Held that - In absence of service of notice issued u/s 148 on the assessee, the reassessment proceedings completed u/s 147 r/w 144 ex-parte qua the assessee deserved to be quashed and are thus set-aside. - Decided in favour of assessee.

Summary

Issues:
1. Validity of notice u/s 148 and service of such notice
2. Initiation of proceedings u/s 148 and assessment validity
3. Compliance with provisions of sec 151(1) of the Act
4. Confirmation of net profit rate applied by the AO
5. Confirmation of interest charged u/s 234A and 234B

Issue 1 - Validity of notice u/s 148 and service of such notice:
The appellant contested the presumption of service of notice u/s 148, emphasizing that the notice sent through speed post was returned undelivered and not served by affixture. The absence of service rendered the proceedings liable to be quashed. The appellant argued that the notice was never served upon them or their authorized agent, highlighting the jurisdictional requirement of mandatory compliance with the service of notice u/s 148. The appellant relied on legal precedents to support their stance, emphasizing the need for proper service of notice to confer jurisdiction.

Issue 2 - Initiation of proceedings u/s 148 and assessment validity:
The appellant challenged the validity of the initiation of proceedings u/s 148 and subsequent assessment, alleging that the notice was issued without proper application of mind, tangible material, or valid reasons. The appellant contended that the proceedings were illegal, bad in law, and void-ab-initio. The appellant also raised concerns regarding the approval process under sec 151(1) of the Act, highlighting the failure to fulfill the mandated provisions and citing relevant case laws to support their argument.

Issue 3 - Compliance with provisions of sec 151(1) of the Act:
The appellant argued that the Principal CIT did not comply with the provisions of sec 151(1) of the Act, merely providing mechanical approval without due consideration. The notice issued based on such approval was deemed bad in law and deserving of being quashed. The appellant further pointed out that the CIT(A) overlooked cited case laws in this regard, indicating a lack of proper consideration in the decision-making process.

Issue 4 - Confirmation of net profit rate applied by the AO:
The appellant objected to the confirmation of the net profit rate of 8 percent by the AO, citing a lack of reasons or comparable cases provided to support the decision. The appellant argued that the confirmation lacked proper justification, indicating a potential flaw in the assessment process.

Issue 5 - Confirmation of interest charged u/s 234A and 234B:
The appellant contested the confirmation of interest charged u/s 234A and 234B by the AO, alleging that the CIT(A) overlooked submissions and case laws presented during the appellate proceedings. The appellant argued that the interest charges were confirmed without due consideration of the appellant's submissions, raising concerns about the decision-making process.

In the final judgment, the Tribunal ruled in favor of the appellant, setting aside the reassessment proceedings completed u/s 147 r/w 144 due to the absence of proper service of notice u/s 148. The Tribunal emphasized the jurisdictional requirement of serving notice on the assessee, highlighting that failure to comply rendered the proceedings invalid and liable to be quashed. The decision was supported by legal precedents emphasizing the mandatory nature of proper notice service for jurisdictional validity.