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TMI Blog2015 (10) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed time limit. 2. Since the objection raised in the cross-objection of the assessee involves a legal issue going to the root of the matters, we preferred to adjudicate upon the cross objection first. 3. The assessee has raised following objections against the first appellate order:- 1. The CIT(Appeals) erred both on facts and in law in upholding the reopening under Sections 147/148 by the A.O. without appreciating and in fact not dealing at all with the submissions made during the course of the hearing with reference to the facts and the judgments relied upon. 2. The CIT(A) erred in not considering and in fact ignoring the submission that there had been no valid service of the notice under section 148 within the time period of limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice dated 21.11.2008 received by the assessee, was never served upon the assessee, hence the proceedings initiated are bad in law as null and void. It was contended that notice u/s 148 stated to be sent on 27.03.2008 is beyond 4 years period. Again vide letter dated 02.12.2008 addressed to the AO the assessee reiterated its objection that unless notice u/s 148 is served on the assessee in the manner prescribed u/s 288 of the Act, the service is insufficient and the AO does not have the justification to re-assess the assessee. Thus, the service of a valid notice is a condition to the validity of the re-assessment and the AO has first to prove that the notice u/s 148 was duly served upon the assessee within the prescribed period. The AO reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s 143(1) dated 25.01.2008 for assessment year 2006-07 had also been sent by the same AO at B-115, Sarvodaya Enclave, New Delhi address. Hence there was no justification for the AO to issue notice u/s 148 at the old address B-231, Okhla Industrial Area, Phase-I, New Delhi. The Ld. AR submitted that the dispatch to the wrong address itself does not amount to service of notice on the assessee. He has submitted that an affidavit dated 19.01.2009 to this effect about the non-service of notice was furnished before the Ld. CIT(A). The Ld. AR also referred page No-1 to 67 of the Paper Book which are copies of notice issued u/s 148 dated 27.03.2008 and the correspondences by the department on the new address and objections raised by the AO regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008 in question at the old address of the assessee. The revenue also fail to establish that on which address out of the two addresses mentioned in the notice u/s 148 was sent and served upon the assessee. The presumption of service comes to the rescue of the revenue only when the notice is dispatched through registered post and the notice is properly addressed. Here is the case where the dispute is to whether the notice u/s 148 dated 27.03.2008 was sent on a proper address or not. It is an established position of law that service of notice u/s 148 of the Act within the prescribed time limit is a condition precedent and mandatory to acquire jurisdiciton by the AO to frame the assessment u/s 147 r.w.s 143(3) of the Act. In absence of service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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