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TMI Blog2012 (5) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... ments made by both the parties and paper books available on record, we are of the view that the notice issued by the Income Tax Department on Sh. Jasbir Singh and other assesses at vill. Noorpur Dona/Mansoorwal Dona, Distt. Kapurthala, is bad in law and assessments so made are quashed X X X X Extracts X X X X X X X X Extracts X X X X ..... anch, placed on record to establish that the assessee was resident of vill. Mohadipur, Jalandhar since 1947 and not of vill. Mansoorwal Dona, Kapurthala. 12. That without prejudice to above legal grounds, on merits, the ld. CIT(a) grossly erred in holding that the agriculture land acquired by PUDA was a capital asset within the meaning of section 2(14). 13. That the said finding of the ld. CIT(A) is also opposed to the recent decision of Hon'ble Jurisdictional High Court in the case of CIT vs. Satinder Pal Singh (2009) 33 DTR (P&H) 281. 14. That the orders of the authorities below are against law and facts of the case." 2. The Ld. counsel for the assessee, Sh. Surinder Mahajan, CA filed a petition under Rule 29 of the ITAT Rules, for admission of additional evidence. For the sake of clarity, the said application is reproduced, as under: "ITA No.190/Asr/2010 for A.Y. 1999-2000 Jasbir Singh NRI Sub: Petition under rule 29 of ITAT Rules, for filing of additional evidence. Respectfully showeth, That the appellant herein, craves leave to file the following documents, being additional evidence, which he intends to refer to and rely upon, while arguing the above appeal before the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29.08.2007, whereby a new Ward 2(6) was created as new assessee's ward w.e.f. 10.09.1997. This document is of great significance to decide the validity of first notice issue u/s 148 by the ITO Ward 2(6) on 16.05.2000, to appellant being a new assessee, against which return was filed and after verification, the matter was closed. Much later, ITO Kapurthala again issued notice u/s 148 on 21.03.2006 which the assessee disputed as without jurisdiction and also barred by time. However, the CIT(A) has held the notice issued by ITO Ward 2(6) as invalid without taking cognizance of this order of CIT dated 29.08.1997. In fact, this order, though on record with the department, remained untraced and hence could not be relied upon. However, the counsel now engaged to represent before the Bench was aware of existence of this order and hence, the same is now sought to file as additional evidence. Since this document strikes at the jurisdictional issue, it is of prime importance to resolve the controversy brought before the Hon'ble Bench. It is therefore humbly prayed that appreciating the submissions made above, the bonafides of the assessee in the matter and to advance the larger cause of dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of the assessee Sh. Jasbir Singh, by ITO, Kapurthala. The reasons for reopening assessment available at PB 18 & 19 by the ITO Kapurthala-1, are in the name of the assessee. The notice sent by the ITO, Kapurthala to the assessee, which is dated 2.6.2006 was not served on the assessee as per report of the Notice Surveyor available on the said letter PB-20. AT PB-21 & 22, the ITO, Kapurthala again issued a letter dated 2.6.2006 to the assessee which was not served on the assessee. The report of the Sarpanch of the village Noorpur Dona is on the said letter at PB-22 that Sh. Jasbir Singh S/o Sh. Jit Singh is not residing in village Noorpur Dona alongwith the report of the Municipal Councilor, Kapurthala that Sh. Jasbir Singh S/o Sh. Jit Singh does not reside in village Noorpur Dona. The report of the notice surveyor of the Income Tax Department is also on record, on the notice itself at PB-22 that this man does not reside in this village and therefore notice could not be served. This report was given by the notice server after inquiring from Sarpanch and other people of the said village. The report dated 6.9.2006 of the said notice surveyor is at PB-22. The notice server has also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng u/s 147 were initiated by the AO by issue of a notice u/s 148 with the prior approval of JCIT Range IV, Jalandhar. This noti8ce was sent under Regd. Cover vide dispatch no.2076 dated 21.03.2006. The reasons recorded before issue of the said notice indicate that taxable capital gain of ₹ 1,000,9746/- had escaped assessment in this case for the A.Y. 1999-2000. In this assessment order framed u/s 144 the AO has stated that the assessee received compensation amounting to ₹ 1,04,54,574/- from PUDA against compulsory acquisition of land belonging to the assessee. 2. A perusal of assessment record indicates that the notice u/s 148 issued by the AO has been received back unserved with the postal remarks ' could not be contracted at home. Hence returned. Thus, the notice issued by the AO u/s 148 has not been served upon the assessee. No attempt has been made by the AO to serve the notice u/s 148 by other means i.e. by affixture etc. 3. Even the notice u/s 142(1) could not be served upon the assessee. The notice server has given a report that the assessee does not reside in village Noorpur Dona. This fact has been certified by the Sarpanch of the village Panchyat of Noorpur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pur Dona. This fact has been certified by the Sarpanch of the village of Noorpur Dona, Kapurthala. The AO decided to affix notice u/s 142(1) on the main gate of Janjghar/Dharamsala, vill. Noorpur Dona. The aforesaid notice indicates that no attempt has been made by the AO to service notice u/s 148 by affixture. No efforts were made by the AO to find out the actual address of the assessee in the wake of report of the Sarpanch that the assessee does not reside in village Noorpur Dona. A statutory notice is required to be affixed at the last known address of the assessee and not the village Jhanghar/Dharamsala. The compensation has been made by PUDA through cheques. The AO could have attempted by making enquiries from PUDA or from the Bank where the cheques of compensation were deposited by the assessee. The ITO was having sufficient time to make inquiries with regard to the actual residential address. The CIT further noticed that there were serious irregularities appear to have been committed by the AO in so far as service of statutory notices is concerned. At PB-74 copy of envelop sent by PUDA to POA Sh. Jarnail Singh at village Dhina, is placed on record. At PB-75, there is order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whether the assessee ever resided in village Noorpur Dona/Mansoorwal Dona and whether the last known address of the assessee could lawfully be determined as the Dharamshala of village Mansoorwala Dona for the purposes of service of notice u/ 148/142(1) of the Income Tax Act. (ii) Whether the land of the assessee qualifies to be termed as an asset within the meaning of section 2(14) of the Act in the light of notification No.9447/F.No.164/3/87-ITA-I dated 06.01.1994. iii) Proper inquiries are made from PUDA Authorities with regard to the person to whom the cheques were issued and from the bank encashing the said cheques/drafts. iv) Proper inquiries are made from the office of ITO Ward IV(2), Range-IV, Jalandhar with regard to the fate of proceedings initiated in this case by that A.O. v) That the return filed by the assessee is taken into account while making the reassessment." 6.6. It was argued by the ld. counsel for the assessee that the matter has been set aside by the ld. CIT and the Ld. CIT has kept the matter alive on all the issues which are raised in the present appeal i.e. whether the assessee resided in village Noorpur Dona for the purposes of service of notice u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingh at vill. Noorpur Dona which is available at assessee's paper book page 6-7 by the Assistant Director of Income Tax (Investigtion-II), Jalandhar. Once the notice has been served on the assessee on this address of Noorur Dona and which has been replied by the assessee and the reply is available at assessee's paper book-7. This proves that the assessee is misleading the Income-tax Department and also further proves that the assessee is living in village Noorpur Dona. It was pointed out by the Ld. DR that when assessment order had reached to the assessee at Noorpur Dona address then how other notices issued by the ITO Kapurthala have not reached to the assessee. Service of assessment order on the assessee at Noorpur Dona address speaks of confusion by the assessee that services have been made upon him at Noorpur Dona address only. As regards the 'Review Note' referred to by the Ld. counsel for the assessee available at PB 70-71 by the CIT does not have any sanctity and should not be taken any cognizance. As regards the certificate of Sarpanch, the Sarpanch is a politician and is a liar and the certificate adduced is a blatant lie. The certificate of the Municipal Councilor is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a right address. Therefore, the conduct of the assessee should be taken on record and assessee's appeal be dismissed on legal grounds. 8. The Ld. counsel for the assessee, Sh. Surinder Mahajan, CA, in the rejoinder invited our attention that all the notices by the ITO, Kapurthala alongwith assessment order were taken by Inspection after the assessment was made. The said inspection is available at PB-30 is a matter of record, which cannot be denied by the Revenue. The assessee is a Non Resident Indian and settled in UK for the last more than 20 years. The assessee's only agricultural land is in village Noorpur Dona, District Jalandhar, part of which was acquired by PUDA for which compensation was paid in 1999. As regards service of notice by the ADI (Inv) Jalandhar, the said notice was received by POA by hand and there can not be any service on the assessee, since the assessee does not live at vill. Noorpur Dona, District Kapurthala whereas he is having his agricultural land, which has been given to some other person for cultivation. As regard the statement of Sh. Chanchal Singh, which was brought to the notice of the Bench by the Ld. DR, Sh. Tarsem Lal, the same was not confront ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower of Attorney holder is a matter of record at PB-9 alongwith copy of computation of paper book at PB-10. The ITO Ward 2(6) vide notice dated 22.08.2000 available at PB-11 had issued a letter on the Power of Attorney holder Sh. Jarnail Singh that the capital gain on the acquisition of agricultural land situated at village Noorpur Dona, Distt. Kapurthala, has not been declared and to clarify the position. Agaian there was a letter dated 04.12.2003 at PB-12 by ITO IV(2), Jalandhar to Mr. Jarnail Singh, Vill. Dhina, Distt. Jalandhar with regard to the clarification about the compensation for acquisition of the land in vill. Noorpur Dona, Distt. Kapurthala. On 13.01.2004, the Chartered Accountant, Authorised Representative of the assessee replied the letter to the said Officer which is available at PB 13 & 14. Therefore, it cannot be presumed that the Income Tax Department does not have any knowledge of Mr. Jarnail Singh, is the power of attorney holder of S.Jasbir Singh NRI and other two NRIs S. Joginder Singh & S. Lakhvir Singh but the same is a matter of record and accepted position unless rejected by the AO unless the return is declared invalid. The return so filed has not been d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a in vill. Noorpur Dona, Distt. Kaurthala, the said address is not even the last known address of the assessee. As argued by the ld. counsel for the assessee, Mr. Surinder Mahajan, CA that the copies of the said notices and orders of the assessments were taken by Inspection only, after the assessment was made and the said Inspection is available at PB-30 is a matter of record and it cannot be denied by the revenue. Therefore, the argument made by the Ld. DR that how the notices and orders have been served upon the assessee at vill. Noorpur Dona, Distt. Kapurthala, do not have any value and such arguments have been made for the sake of making the arguments only since no notice u/s 148, 142(1), 133(6) or any order u/s 144 r.w.s. 147 has been served upon Sh. Jasbir Singh and others at vill. Noorpur Dona, Distt. Kaprthala. In the absence of such services of notices of the orders, it cannot be said that proper service has been made upon the assessee or various notices mentioned hereinabove including order u/s 144 r.w.s. 147 of the Act. It is a matter of record that Sarpanch of the village Noorpur Dona, Distt. Kapurthala and Municipal Councillor of the said village has also certified tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee qualifies to be termed as an asset within the meaning of section 2(14) of the Act, (iii) whether proper inquiries are made from PUDA authorities and ITO Ward IV(2), Jalandhar and about the return filed by the assessee to be taken into account while making the reassessment. Therefore, none of the issues have been decided u/s 264 by the CIT and, therefore, assessee was authorized to agitate such issues in appeal. The reliance placed by the ld. counsel for the assessee on the decision of the ITAT, Hyderabad Bench, in the case of Dr. A Naresh Babu vs. Income Tax Officer, 123 TTJ 836 (supra) supports our views. Therefore, the arguments made by the Ld. DR that the issues have attained finality vide order of CIT u/s 264 of the Act cannot help the revenue since all the issues are alive and have not attained any finality, as mentioned herein above. 9.3 As regards the observation of the AO at page 2 & 3 of the assessment order to which our attention was invited by Sh. Tarsem Lal, the Ld. DR, goes against the Revenue since in response to query made by the ITO, Sh. Jarnail Singh furnished the reply alongwith copy of return of income for the assessment year 1999-2000, alongwith ..... X X X X Extracts X X X X X X X X Extracts X X X X
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