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TMI Blog2020 (10) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Ld. CIT (A) who dismissed the appeal of the assessee vide order dated 14.03.2017 and against the said order of learned CIT (A), an appeal is now being preferred by the Assessee Company before this Tribunal. The following grounds have been raised by the assessee: "1. Whether on the facts and in the circumstances of the case the learned lower authorities has grossly erred in law and on facts in passing and in confirming the order u/s 143(3) of the Act by ignoring the fact that the first notice u/s 143(2) of the Act was not served upon the assessee within the time limit prescribed under the Act. i.e. on or before 30th September 2013 as such the assessment proceedings were illegal. 2. Whether on the facts and in the circumstances of the case the learned assessing officer has grossly erred in law and on facts in enhancing the income from House Property by Rs. 35,94,903/- *by holding that in the computation of total income the rent considered separately for calculating property income was shown at Rs. 4,79,31,859/- however while calculating income from House Property the rental Income is considered to be 4,27,96,283 and the assessee was asked to clarify the reason for such diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice was issued nor any reasons were given by the assessing officer for assessing the interest income under the head income from other sources instead of income from business. 7. Whether on the facts and in the circumstances of the case the learned CIT (A) erred in not considering the decision of the Hon'ble Delhi High Court in the case of Snam Progetti S.P.A. Vs. Additional Commissioner of Income Tax, New Delhi 132 ITR 70 (Del) where in it was held that interest earned from bank deposit was business income and further it was categorically held the interest from bank deposit was also a business income for the purpose of set off and could not be refused even if interest income is taxed under a separate head. 8. Whether on the facts and in the circumstances of the case the learned lower authorities has grossly erred in law and on facts in withdrawing the claim of set off of brought forward business losses amounting to Rs. 20,55,105/- as claimed u/s 72 of the Income Tax Act. 9. Whether on the facts and in the circumstances of the case the assessment was time barred as the assessment order was dispatched on 08/04/2015 and was served upon the assessee on 09/04/2015 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice under section 143(2) of the Act was issued on 23.09.2013 at the old address i.e. A - 46, IInd Floor, Vasant Marg, Vasant Vihar, New Delhi (placed at page 78A of the paper book), which was never served on the assessee. It was further submitted that, however, the AO, in the remand report dated 17.01.2017 furnished before learned CIT (A), had submitted that the said notice was personally served on the assessee company. In this regard, the learned counsel for the assessee further submitted that the assessing officer has not enclosed the report of the process server to support the fact that the notice was served personally through the process server. It was further submitted that also the name mentioned on the said notice is not pertaining to the assessee nor the telephone numbers so mentioned in the said notice belong to the assessee company. It was further argued by the learned counsel of the assessee that even if for a moment we accept the contention of the AO that notice dated 23.09.2013 was served personally at the new address, then why were subsequent notices dated 20.10.2014 and 18.11.2014 again issued at the old address? (Placed at pages 3 and 4 of the paper book) It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi - 110005. Further, it is uncontroverted that the assessee had, vide letter dated 06.06.2008, intimated the AO, regarding the said new address of the assessee. The said letter was referred to and is placed at page 44 of the paper book. On further going through the paper book, it is seen that from AY 2008-09 onwards, the assessee had been filing its return of income at the new address i.e. 11/2A, Pusa Road, Karol Bagh, New Delhi - 110005 and that even the Revenue, in AY 2009-10, had processed the return of income under section 143(1) of the Act at the new address (placed at page 45 of the paper book). Thus, it is clear that the Revenue was aware about the new address of the assessee prior to the issuance of notice under section 143(2) of the Act in the instant case. Thus, once it is clear that the Revenue was aware about the new address of the assessee, we fail to appreciate as to why then the notice under section 143(2) of the Act was issued on 23.09.2013 at the old address i.e. A - 46, IInd Floor, Vasant Marg, Vasant Vihar, New Delhi (placed at page 78A of the paper book)? This question was put to the learned Sr. DR by the Bench but he was not able to provide any satisfacto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng on the notice under Section 148 being issued to him at the known address and being served upon him. In the present case, on facts, it is not in dispute that the AO was aware of the change of address of the Assessee and yet the notice under Section 148 of the Act was issued at the older address. 11. Mr. Sahni submitted that the order of the CIT (A) notes the fact that a photocopy of the notice was given to the Assessee during the re-assessment proceedings and that by itself should constitute sufficient service of notice on the Assessee. In light of the law explained by the Supreme Court in R.K. Upadhyaya v. Shanbhai P. Patel (1987) 3 SCC 96 which has in turn been followed by this Court in Chetan Gupta (supra), the requirement of both the issuance and the service of such upon the Assessee for the purposes of Section 147 and 148 of the Act are mandatory 'jurisdictional requirements'. The mere fact that an Assessee participated in the reassessment proceedings despite not having been issued or served with the notice under Section 148 of the Act in accordance with law will not constitute a waiver of the said jurisdictional requirement. 12. On facts, therefore, the Court finds no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 141 (Mad). In CIT v. Thayaballi Mulla Jeevaji Kapasi [1967] 66 ITR 147 (SC), the Respondent to whom the notice was directed was not in town. The only information which the process server had was that the Respondent was either in Bombay or Ceylon. Thereafter, the process server affixed the notice on the business premises of the Respondent. The Supreme Court affirmed the essential principle that "if no notice was served within the period, the Income-tax Officer was incompetent to commence proceedings for reassessment under Section 34 of 1922 Act." It was further held that "service of notice under Section 34 (1) (a) within the period of limitation being a condition precedent to the existence of jurisdiction, if the Income-tax Officer was unable to prove that the notice was duly served upon the Respondent within the prescribed period, any return filed by the Respondent after the expiry of the period of eight years will not invest the Income-tax Officer with authority to reassess the income of the Respondent pursuant to such return." On the facts of that case it was held that the Revenue had sufficiently discharged the onus by producing the affidavit of the process server." (ii) CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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