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TMI Blog2017 (4) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... turns for the assessment year 2008-09 admitting a total income of Rs. 17,74,520/-. She was served with a notice under Section 148 on 13/4/2015 proposing to reopen the assessment for the year 2008-09. She was also served with a notice under Section 142(1) on 1/6/2015. She filed replies as Exts.P3 to P5. However, an order of assessment came to be passed on 22/3/2016 bringing to tax sale of agricultural land which was exempted under the earlier assessment completed under Section 143(1). Petitioner inter alia challenges the aforesaid assessment order mainly on the ground that notice under Section 148 had been issued beyond the period of limitation as provided under the statute. 3. In WP(C) No. 17571/16, the assessee is the husband of the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /-. Certain factors like the situation of the property in an industrialized and urbanised area, the present nature of the property, classification of land as residential for the purpose of fixation of guideline value, the high price realisation for small extent of land etc tempted the assessing officer to form an opinion that the petitioner is not an agriculturist but an industrialist and arrived at a conclusion that the land sold is not agricultural land but a capital asset within the meaning of Section 2(14) of the IT Act, the transfer of which gives rise to capital gains. It is stated that the petitioner had indicated in the return that she had sold agricultural property situated in Nemily Grama Panchayat in Tamil Nadu acquired by her in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in Travancore Diagnostics Pvt. Ltd v. Assistant Commissioner of Income Tax [(2016) 74 Taxmann.com 239 (Kerala)]. On the other hand, learned counsel for the Department placed reliance upon the judgment of the Apex Court in R.K.Upadhyaya v. Shanabhai P. Patel [(1987) 166 ITR 163 (SC)] to prove the difference between 'issue of notice' and 'service of notice'. In the above judgment, it was held that when the Income Tax Officer issued a notice of reassessment under Section 147(b) by registered post on 31/3/1970 and the notice was received by the assessee on 03/04/1970, the notice was not barred by limitation and the Income Tax Officer has jurisdiction to proceed to complete the assessment. In Assistant commissioner of Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the proceedings now initiated against the petitioners were beyond the period of limitation. In terms of Section 147, if the assessing officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of Sections 148 to 153, assess or reassess such income. As per Section 148, before making assessment, reassessment or recomputation under Section 147, the assessing officer shall serve on the assessee a notice requiring him to furnish within such period, as may be specified in the notice, a return of his income of the income of any other person in respect of which he is assessable under the Act. Section 149 indicates that no notice under Section 148 shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thereafter, gathering one more address of the assessee, the letter was finally served on 13/4/2015 on the assessee at one of the associated business concern namely Sree Sakthi Paper Mills Ltd, Kochi-16. It is therefore contended that the 13 days delay in service of notice is fully attributable to the assessee. The assessing officer further observed that though under Section 148, the notice is to be served, Section 151 (1) prescribes that notice should be issued within 4/6 years time as the case may be. Further it is contended that subsequent to issue of notice under Section 148, the assessee's representative had appeared and participated in the reopened assessment proceedings and the issues involved in the assessments were put to them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax officer to deal with the matter. But it is a condition precedent to the making of the order of assessment. It is further held that as Income Tax Officer had issued notice within limitation, the officer can proceed to complete the assessment after complying with the requirement. Apparently in these cases, though a notice was generated on 30/3/2015, it is not stated that they have issued the said notice. According to them, enquiry revealed that the assessee's address was at Chennai and therefore notice was sent in the said address which was returned without being served. Thereafter gathering one more address of the assessee, the letter was finally served on 13/4/2015. It would therefore be seen that all attempts had been made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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