9911796707
TMI Blog2016 (5) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... 'the Act') has been sustained. 2. The facts, in brief, are that the assessee had filed its return of income on 29.10.2004 declaring Nil income Subsequently, on receiving certain information from the Investigation Wing, the case of the assessee was re-opened and notice u/s 148 of the Act was issued to the assessee company on 28.03.2011 at the address S-524, Vikas Marg, Shakarpur, Delhi. The assessee, subsequently in September, raised the primary issue that no notice u/s 148 of the Act (dated 28.03.2011) was ever received by the assessee. The assessee raised objection to the proceedings u/s 148 on the ground of non-service of the statutory notice. However, the Assessing Officer proceeded to complete the assessment. The issue of non-service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee was reopened u/s 148 of the Act. The assessee received a notice dated 09.09.2011 (Paper Book Page 14) from the AO, referring to an earlier notice issued by his predecessor u/s 148 of the Act. The assessee, however, vide reply dated 14.09.2011 (Paper Book Page 15) submitted that the assessee had not received any notice u/s 148 of the Act. Similar notice was again received by the assessee on 07.10.2011 (Paper Book Page 16), which was replied to by the assessee vide its reply dated 14.10.2011 (Paper Book Page 17). The AO, however, rejected the objection raised by the assessee and passed the impugned assessment order. It was further submitted that the issue was again raised by the assessee before the Ld. CIT (A). The Ld. CIT (A), howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not served on the assessee, in the absence of which, the order passed by the AO and sustained by the Ld. CIT(A) was bad in law and liable to be quashed. He relied on the judgment of the Hon'ble Jurisdictional High Court in the case of CIT (Central)-I v. Chetan Gupta in ITA No. 72 of 2014, dated 15.09.2015. 6. The Ld. DR placed reliance on the order of the Assessing Officer and the Ld. CIT(A) and submitted that technical defect, if at all, cannot vitiate the entire reassessment proceedings and that on merits also, the addition deserves to be upheld. 7. We have heard the rival parties and have also perused the records. It is mentioned in the assessment order that the notice u/s 148 of the Act was issued on 28.3.2011 which was duly served o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om a notice u/s 148 is to be served is a person treated as die agent of a non-resident u/s 163 and the assessment, reassessment or recomputation to be made in pursuance of the notice is to be made on hini as the agent of such non-resident, the notice shall not be issued after the expiry of a period of two years from the end of the relevant assessment year. In view thereof the relevant point here is that notice should be 'issued". In this case, notice was issued within time. 5.2 In the case of Mayawati v CIT and Others (2010) 321 ITR 349 (Delhi) the Court observed as under:- "Reassessment - Notice-Notice u/s 149 - Notice should be issued within prescribed period - Not , necessary that notice should be served within prescribed period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 is a mandatory precondition. The onus lies on the Revenue authorities to prove that the notice was served on the assessee within the stipulated period. It is only if the said notice is served on the assessee that the assessing officer would be justified in taking up proceedings against the assessee. If no notice is issued, or if the notice issued is shown to be invalid, then the proceedings taken up by the assessing officer would be illegal and void. In this case, it is very much apparent that the notice u/s 148 had not been served on the assessee within the stipulated period. The Assessing Officer can assume jurisdiction to complete the assessment only after valid and legal service of the notice in accordance with law. Unless such notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a jurisdictional pre-condition to finalizing the reassessment. (iv) The onus is on the Revenue to show that proper service of notice has been effected under Section 148 of the Act on the Assessee or an agent duly empowered by him to accept notices on his behalf. In the present case, the Revenue has failed to discharge that onus. (v) The mere fact that an Assessee or some other person on his behalf not duly authorised participated in the reassessment proceedings after coming to know of it will not constitute a waiver of the requirement of effecting proper service of notice on the Assessee under Section 148 of the Act. (vi) Reassessment proceedings finalised by an AO without effecting proper service of notice on the Assessee unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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