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TMI Blog2016 (10) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... urged in the course of making oral submission by Learned Counsel for the respondents. Hence, it appears to be absolutely clear that the notice under Sec. 148 of the IT Act was never served on the petitioner at its Sunny Park address. Hon'ble Apex Court in the case of Commissioner of Income Tax-vs.- Thayaballi Mulla Jeevaji Kapasi [1967 (3) TMI 1 - SUPREME Court] wherein it was held that the mere fact that the serving officer did not find the party to be served with the notice at his address is not sufficient to establish that he cannot be found. It must be shown not only that the serving officer went to the place at a reasonable time when he would be expected to be present, but also that if he was not found, proper and reasonable attempts were made to find him either at that address or elsewhere. If after such reasonable attempts the position still was that the party is not found, then and then only can it be said that he cannot be found. In the instant case, it does not appear that any attempt was made by the serving officer to find the assessee at any other address. Indeed, we are at a loss to understand why the notice was sought to be served at the erstwhile address of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner relied on a report of the Inspector attached to the office of the ITO, Ward - 9(3), Kolkata. He then referred to a notice dated 29 October, 2014 which referred to the earlier notice dated 31 March, 2014 which is under challenge in the present petition and called upon the petitioner to furnish the return under Sec. 148 of the IT Act within 30 days failing which reassessment would be done ex parte as per material available on record. In the last week of December, 2014, the petitioner received a notice dated 24 December, 2014 from the office of the ITO, Ward 12 (1), Calcutta intimating that jurisdiction of the case was with his office and the case was re-fixed for hearing on 6 January, 2015 which was the last opportunity for the petitioner to represent his case. (3) By a letter dated 5 January, 2014, the petitioner informed the ITO Ward 12(1) that no notice had been received by it under Sec. 148 of the IT Act at its registered office at 11/1 Sunny Park, 3rd Floor, Calcutta 700019. (4) The ITO wrote a letter dated 6 January, 2015 to the petitioner mentioning that notice under Sec. 148 of the IT Act dated 31 March, 2014 had been sent by speed post to the petitioner a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng filing of the Income Tax Return by the Petitioner Assessee Company for the assessment year 2010-11 on 30 September, 2010 showing its said new address. (iii) Copy of the intimation under Section 143(1) of the said Act in respect of the assessment year 2009-10 issued at the said new address by the Revenue Respondents on 28th December, 2010. (iv) Copy of IT Acknowledgement evidencing filing of the Income Tax Return by the Petitioner Assessee Company for the assessment year 2011-12 on 20th September, 2011 showing its said new address. (v) Copy of the intimation under Section 143(1) of the said Act in respect of the assessment year 2010-11 issued at the said new address by the Revenue Respondents on 20th April, 2011. (vi) Copy of IT Acknowledgement evidencing filing of the Income Tax Return by the Petitioner Assessee Company for the assessment year 2012-13 on 27th September, 2012 showing its said new address. (vii) Copy of the Notice dated 31st July, 2012 issued under Section 143(2) of the said Act in respect of the assessment year 2011-12. (viii) Copy of the requisition under Section 142(1) of the said Act for the assessment year 2011-12 dated 4th July, 2013 made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to such invalid notice would be void for want of jurisdiction. In this connection he also relied on two decisions of this court in the cases of Rameshwar Sirkar-vs.- Income Tax Officer, (1973) 88 ITR 374 (Cal) and Gajendra Kumar Banthia-vs.-Union of India, (1996) 222 ITR 632 (Cal). (12) Learned Counsel then referred to Sec. 282 of the IT Act which provides for the mode of service of a notice or summon or requisition or order or any other commutation under this Act. He also referred to O. 5 Rules 17-20 of the CPC, 1908 as regards mode of service. On this point, learned Counsel relied on the following seven decisions:- (a) Rameshwar Sirkar-vs.-ITO, (1973) 88 ITR 374 (Cal). (b) CIT-vs.-Thayaballi Mulla Jeevaji Kapasi (1967) 66 ITR 147 (SC). (c) Lakshmi Narayan Prasad Bhagat-vs.-State of West Bengal Ors. (1979) 118 ITR 454 (Cal). (d) Ramendra Nath Ghosh-vs.-CIT (1967) 66 ITR 414 (Cal). (e) Gopiram Agarwalla-vs.-First Addl. Income Tax Officer (1959) 37 ITR 493 (Cal). (f) Thomas (M.O.)-vs.-CIT (1963) 47 ITR 775, 778, 780 (Ker). (g) Kiran Machines-vs.-ITO (2007) 295 ITR 4 (Mad). (13) Learned Counsel submitted that it is now settled law that the mere fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of fact which the writ Court will not go into. (17) Learned Counsel submitted that during the pendency of the writ petition, the petitioner requested for the reasons recorded by the Assessing Officer for issuance of the impugned notice and the same were furnished to the petitioner by letter dated 23 February, 2015. It is significant that the petitioner filed objection to the said recorded reasons by its letter dated 5 March, 2015, but in the said objection there is no whisper of non-service of the impugned notice or about the notice being time barred. The petitioner merely recorded its objections on merits to the grounds for reopening the assessment. It was much later i.e. by letter dated 12/14 April, 2015 that the petitioner asked for a copy of the impugned notice. (18) It was next submitted that the condition precedent for issuance of a notice under Sec. 148 of the IT Act is that the Assessing Officer would record reasons for issuing the same and the notice shall be issued within the time prescribed under Sec. 149 of the IT Act. In the present case, the reasons were duly recorded and the notice was issued and despatched through the postal department apart from affixati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also disclosed copies of IT Return acknowledgement forms for the assessment years 2009-10, 2010-11, 2011-12, 2012-13 and 2013-14 issued by the Department which mention the Sunny Park address of the petitioner. The petitioner has also brought on record copies of notices issued by the Department to the petitioner under Sec. 143(1) of the IT Act pertaining to various assessment years starting from 2009-10, all of which were sent to the Sunny Park address of the petitioner. Hence, it is beyond any doubt that the Department was well-aware of the current address of the petitioner. (23) From the report of the Inspector attached to the office of the IT Act, Ward-9(3), Calcutta, it is evident that the said Inspector attempted to contact the petitioner at its erstwhile address at Biplabi Anukul Chandra Street and not having found the petitioner there, affixed a copy of the notice under Sec. 148 of the IT Act at the said address. This report is dated 31 March, 2014. Although this report mentions that the said address was last known address of the petitioner, such statement is obviously incorrect. As stated above, starting from 2009-10 the Department has sent all correspondences and noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Act, 1944 and the Rules framed thereunder, even though an assessee has not filed his return of the agricultural income pursuant to a general notice, it is the obligation of the appropriate authorities to serve a notice under Sec. 24(1) or (2) of the Act or make an attempt to have the notice served on the assessee duly and personally before the notice is served by affixation. Hence, when there was no due and proper service of notices at any stage of the proceeding, be it at the initial stage or at the stage of the certificate proceeding, the service of notice by affixation would be invalid. (emphasis added is mine). In Ramendra Nath Ghosh-vs.-Commissioner of Income Tax (supra), a notice of hearing was served on the assessee by post long after the hearing date. A Division Bench of this Court held that service by affixture was not proper service as provided in O. 5 R. 17 of the CPC as the house on which the notice was served was not the residence of the appellant and the company which had been occupying the house and with which the appellant had been connected had gone into liquidation before the affixture. In Gopiram Agarwalla-vs.-First Additional Income Tax Officer (supra), a Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedent to the exercise of jurisdiction. In CIT-vs.-Kurban Hussain Ibrahimji Mithiborwala (supra), the Hon'ble Supreme Court held that the income tax officer's jurisdiction to reopen an assessment depends upon the issuance of a valid notice to the assessee. If the notice issued is invalid for any reason, the entire proceedings taken by him would become void for want of jurisdiction. Similarly in Rameshwar Sirkar-vs.-Income Tax Officer (supra), Sabyasachi Mukharji, J. (as his Lordship then was) observed that the service of notice under Sec. 148 is mandatory and is a condition precedent for the initiation of reassessment proceedings. (27) There does not seem to be any doubt that a re-assessment proceeding or an order passed in such proceeding without duly serving notice under Sec. 148 of the IT Act on the assessee, is void ab initio and a nullity in the eye of law. This must be the position in law since reopening of an assessment by the Department without duly notifying the assessee and without giving him an opportunity to oppose such a decision clearly amounts to breach of principles of natural justice. It cannot be gain-said that natural justice is one of the principal pi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs if its Return for the relevant year is reopened. It has full opportunity to protect its interest and to contend as to why there should be no reassessment of its income for the relevant year. Needless to say, the assessing officer will grant the petitioner full opportunity of hearing in the matter. (31) Further, if the notice impugned is quashed, that would put an end to the possibility of any reassessment proceeding. Any fresh notice issued under Sec. 148 for the assessment year 2007-08 would be barred by limitation. That would not be a desirable position. (32) In conclusion, I hold that any reassessment proceeding initiated by the Department pursuant to the notice dated 31 March, 2014 which is impugned in this application or any order passed in such proceeding is bad in law and of no effect. The same are quashed. However, the Department will not be prevented from proceeding afresh in terms of the notice dated 31 March, 2014 and will give full opportunity of hearing with adequate notice to the petitioner. Being a public authority, I trust and believe that the Department will act fairly, reasonably and in compliance with the principles of natural justice. The reassessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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