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TMI Blog2011 (6) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... . By doing so, the CIT(A)-1, Agra has also failed to appreciate that even after issuance of notices at 109, North Idgah colony, Agra, he never objected the same nor he filed any evidence that he has no any connection with the aforesaid address. 1(c). By doing so, the CIT(A)-1, Agra has also failed to appreciate that the notice at the last known address is a valid service. 2. That the order of CIT(A)-1, Agra being erroneous in law and on facts of the case be set aside and that the order of the A.O. be restored. 2. The facts relating to the issue in dispute are that the Assessing Officer issued notice dated 28.03.2006 u/s. 148 of the Income-tax Act, 1961 (hereinafter referred to as the Act ) on the address, i.e., 109, North Idgah Colony, Agra, available at the assessee s bank account No. 10309 in Canara Bank (SSI Branch), Sanjay Place, Agra. The Assessing Officer issued the said notice after recording the reasons that the assessee has obtained or credited a sum of ₹ 5,28,183/- and ₹ 5,79,424/- from M/s. Essar Pee Advertising, Delhi who have been providing entries to the beneficiaries by showing that the transaction made by them in purchase and sale of shares of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... celled by the learned first appellate authority. Now, the Revenue is aggrieved by the impugned order filed present appeal. 3. At the time of hearing, the learned DR stated that the Assessing Officer issued notice dated 28.03.2006 u/s. 148 of the Act after recording the reasons which is on the basis of information received from additional DIT (Inv.), Agra/capital gain/2004-05 dated 14.03.2005. He further, stated that the notice u/s. 148 dated 28.03.2006 was sent to the assessee by speed post on the last known address which was available in the bank account No. 10309 maintained by the assessee in Canara Bank (SSI Branch), Sanjay Place, Agra till 02.11.2006, which has not come back to the department served or un-served till date, which is deemed to be a valid service, but the learned first appellate authority has wrongly cancelled the assessment order by holding that the notice u/s. 148 of the Act was not served upon the assessee. He further stated that learned first appellate authority has not adjudicated / decided additions on merits. He requested that the appeal filed by the department may be accepted and the finding given by the learned first appellate authority against the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is credited in the bank account No. 10309 of the assessee in Canara Bank (SSI Branch), Sanjay Place, Agra on 06.06.1998. On enquiry, it has been found that these transactions are bogus and entire amount of the same claimed to have been received by the assessee by the bank draft is the assessee s income from undisclosed sources which had escaped assessment within the meaning of section 147 of the Act. The Assessing Officer issued notice dated 28.03.2006 of the Act to the assessee on the address given in the bank account, i.e., 109, North Idgah Colony, Agra by speed post on 31.03.2006. The Income-tax Officer 1(3), Agra informed to the learned DR about these facts in writing vide his letter dated 27.05.2011 which was conveyed to this bench by the learned DR on 27.05.2011 stating these facts. They have also supplied photocopy of the dispatch register showing the entry at Sl. No. 4120 on 30.03.2006 and sent by speed post on 31.03.2006 at the assessee s address, i.e., 109, North Idgah Colony, Agra. We have perused the same. As per record, the Assessing Officer has also written a letter dated 09.11.2006 to the Chief Manager/Branch Manager, Canara Bank (SSI Branch), Sanjay Place, Agra rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted if the notice was properly addressed, prepared and posted by registered post . 28 ITR 684. In the present case, the address has been found to be erroneous. Hence the service of notice cannot be deemed to have been effected. In the case of Venkat Naicken Trust vs. ITO 242 ITR 141 (Mad), the Hon ble High Court held that Where the assessee pleaded that notice was not served, the onus was on the Revenue to substantiate their case that assessee was served with proper notices. Service of notice is a statutory requirement u/s. 148(1) of the Act to assume valid jurisdiction. Therefore, in the fact and circumstances of the case, since the service of notice is not proved, assessment proceedings conducted in consequence of such notice is rendered invalid. The Hon ble Allahabad High Court has held as under :- The notice in question was not served on all the adult members of the family, as required under section 283(I) of the Act. This mistake goes to the very root of the matter. It is fairly settled that an assessing authority gets jurisdiction to reopen a concluded assessment only after serving a valid notice on the assessee. A notice contemplated under section 148 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t been received back by the department un-served is deemed to be valid service in the eye of law as held by the Hon ble Calcutta High Court in the case reported in 28 ITR 684 and the learned first appellate authority has wrongly held that such service of notice cannot be deemed to have been effected and has wrongly cancelled the assessment order passed u/s. 144/147 of the Act dated 05.12.2006. We cancel the same. 8. As admitted by both the parties that the learned first appellate authority has not adjudicated / decided the addition on merits, in the interest of justice we are directing the learned first appellate authority to adjudicate / decide the same on merits after hearing the parties. Therefore, the appeal filed by the Revenue is partly allowed for statistical purposes. 9. As regards to the cross-objection, keeping in view of the order passed in Revenue s appeal, the cross objection becomes infructuous and the same is dismissed. 10. In the result, the appeal filed by the Revenue is partly allowed for statistical purposes and the cross-objection filed by the assessee is dismissed. Order pronounced in the open court on 17.06.2011. - - TaxTMI - TMITax - Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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