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TMI Blog2021 (4) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee through ITBA on 21.03.2018 - Before us, the revenue had relied upon a letter received from the ITO- 27(2)(1), Mumbai, dated 21.01.2021 and therein claimed that the notice issued under Sec. 148 was served on the assessee on 21.03.2018 through ITBA. However, on a perusal of the screenshot of the income-tax portal of the assessee as had been placed on our record at Page 16 of the assessee s Paper Book (for short APB ), we find that the same though reveals that the notice under Sec. 148 was issued on 21.03.2018 [document ID No. ITBA/AST/S/148/2017- 18/1009359143(1)] however, the column referring to the date of service of the said notice is found to be blank. In fact, we are unable to comprehend that when the assessee, as claimed, did not have any e-mail address then, how the notice issued under Sec. 148 could have been served upon him by the department through electronic mode. Nothing has been brought on our record by the ld. D.R to dislodge the aforesaid claim of the assessee. As the assessee had not filed his return of income for the year in question i.e A.Y 2011-12 thus, the occasion of furnishing of any e-mail address in such non-existent return of income doe not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA No.3789/MUM/2019 - - - Dated:- 30-3-2021 - Shri Rajesh Kumar (Accountant Member) And Shri Ravish Sood (Judicial Member) For the Assessee : Ms. Kinjal Bhuta, A.R For the Revenue : Ms. Smita Verma, D.R ORDER PER RAVISH SOOD, J.M: The present appeal filed by the assessee is directed against the order passed by the CIT(A)-25, Mumbai, dated 11.04.2019, which in turn arises from the assessment order passed by the A.O under Sec. 144 r.w.s 147 of the Income Tax Act,1961 (for short Act ), dated 10.11.2018. The assessee has assailed the impugned order on the following grounds of appeal before us: 1. In the facts and circumstances of the case and in law, the Ld. CIT(A) erred in confirming the Assessment order passed u/s 144 read with section 147 of the IT Act,1961 on the basis of notice issued u/s 148 on the completely incorrect address of the appellant without complying with rule 127 of the IT Rules i.e. to examine the PAN Database to ascertain the correct address of the appellant. Your appellant therefore prays that the assessment/reassessment complete in mechanical order by the Ld. AO be quashed as being null and void. 2. In the facts and circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten submissions filed during the course of hearing of the Appeal before the Hon. CIT Appeal. 8. The appellant craves leave to amend, alter or delete or add to all or any of the above grounds of appeal or furnish fresh grounds of appeal and make the detailed submissions on each of the grounds on or final hearing of Appeal. 2. Information was received by the A.O that the assessee during the year in question had made cash deposits of ₹ 16,74,860/- in his saving bank account with Cosmos Co-operative Bank, Branch : Ghatkopar, Mumbai. As the assessee had not filed his return of income for the year in question thus, the A.O being of the view that the income of the assessee chargeable to tax had escaped assessment reopened his case under Sec. 147 of the Act. Notice under Sec. 148, dated 21.03.2018 was issued to the assessee but the same was returned unserved. Subsequently, a notice under Sec. 142(1), dated 28.08.2018 was issued by the A.O wherein the assessee was called upon to furnish certain details latest by 12.09.2018. However, the said notice too was returned unserved. In the backdrop of the aforesaid facts the A.O issued a letter under Sec. 133(6) to the branch man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendency of the appeal before us had expired on 22.06.2019 thus, his legal heir i.e Smt. Bharti Pankaj Shah (widow of the deceased assessee) vide a letter dated 23.12.2020 (alongwith affidavit) had sought for being brought on record as the l/heir of the deceased assessee, and had filed a revised memorandum of appeal. The ld. Authorized Representative (for short A.R ) for the assessee at the very outset of the hearing of the appeal assailed the validity of the assessment framed by the A.O under Sec. 144 r.w.s 147, dated 10.11.2018. It was submitted by the ld. A.R that as the impugned assessment was not preceded by any service on the assessee of a notice issued under Sec. 148 of the Act thus, the assessment therein framed was invalid and void ab-initio. Elaborating on her aforesaid contention, it was submitted by the ld. A.R that the assessee who was a senior citizen (since deceased) was a small time cloth merchant who during his life time was trading in cloth fabric. It was submitted by the ld. A.R that the assessee had way back filed his last income-tax return for A.Y. 2005-06, and thereafter, as his annual income in the subsequent years remained substantially below the basic exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice under Sec. 148 at the correct address of the assessee. Alternatively, it was submitted by the ld. A.R that as the assessee was a small time cloth merchant and the cash deposits of ₹ 16,74,860/- in his bank account during the year in question was sourced from the petty cash sales and redeposit of the cash withdrawals made during the year in question from the very same bank account thus, addition made by the A.O being highly arbitrary was liable to be vacated. 5. Per contra, the ld. Departmental Representative (for short D.R ) relied on the orders of the lower authorities. It was submitted by the ld. D.R that the notice issued under Sec. 148, dated 21.03.2018 was duly served upon the assessee. Ld. D.R drawing support from a letter dated 21.01.2021 that was received by him from the A.O, had therein claimed that the notice issued under Sec. 148 was served upon the assessee through ITBA on 21.03.2018. It was submitted by the ld. D.R that the assessee had wrongly claimed that no notice under Sec. 148 was served upon him. On merits, it was submitted by the ld. D.R that as the assessee had failed to substantiate the source of the cash deposits in his bank account thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf. (2) The Board may make rules providing for the addresses (including the address for electronic mail or electronic mail message) to which the communication referred to in subsection (1) may be delivered or transmitted to the person therein named. Explanation - For the purposes of this section, the expressions electronic mail and electronic mail message shall have the meanings as assigned to them in Explanation to section 66A of the Information Technology Act, 2000 (21 of 2000). Further, Rule 127 of the Income Tax Rules, 1962 contemplates the address (including the address for electronic mail or electronic mail message) to which a notice or summons or requisition or order or any further communication under the Act may be delivered for the purpose of sub-section (1) of Sec. 282, and the same reads as under: (Service of notice, summons, requisition, order and other communication. 127, (1) For the purposes of sub-section (1) of section 282, the addresses (including the address for electronic mail or electronic mail message) to which a notice or summons or requisition or order or any other communication under the Act (hereafter in this rule referred to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the records of the Government; or (vii) the address of the assessee as available in the records of a local authority as referred to in the Explanation below clause (20) of section 10 of the Act;] , (b) for communications delivered or transmitted electronically:- (i) email address available in the income-tax return furnished by the addressee to which the communication relates; or (ii) the email address available in the last income-tax return furnished by the addressee; or (iii) in the case of addressee being a company, email address of the company as available on the website of Ministry of Corporate Affairs: or (iv) any email address made available by the addressee to the income tax authority or any person authorised by such income-tax authority. (3) The Principal Director General of Income-tax (Systems) or the Director, Gene of Income-tax (Systems) shall specify the procedure, formats and Standard, for ensuring secure transmission of electronic communication and shall also responsible for formulating and implementing appropriate security, and retrieval policies in relation to such communication.] In the backdrop of the mode and manner of service of a notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit. Accordingly, in case substituted mode of service i.e service of notice through affixture is to be resorted by the department then, as per Sec. 282 r.w Order V- Rule 20 of the Code of Civil Procedure (5 of 1908), the copy of the said notice is mandatorily required to be affixed at some conspicuous part of the house in which the assessee is known to have last resided or carried on business or personally worked for gain. However, in the case before us, nothing has been placed on record which would reveal that the A.O had got the notice issued under Sec. 148, dated 21.03.2018 served through affixture at the last known address of the assessee. In fact, as observed by us hereinabove, the fact that the A.O had referred to an incorrect address of the assessee in the body of the assessment order itself militates against the aforesaid unsubstantiated claim of the A.O of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by us hereinabove was filed by the assessee for A.Y 2005-06 on 29.08.2005 (copy on record). On a perusal of the return of income for A.Y 2005-06, we find that no e-mail address was therein made available by the assessee. Lastly, it is also not the case of the department that the assessee had ever made available its e-mail address either to the income-tax authority or to any person authorised by it. In the backdrop of the aforesaid facts, we concur with the ld. A.R that the claim of the revenue that the notice issued under Sec. 148, dated 21.03.2018 was served upon the assessee by electronic mode being devoid of any force cannot be accepted. Accordingly, on the basis of our aforesaid deliberations, we are of a strong conviction that the notice issued under Sec.148, dated 21.03.2018 had also not been served by the department by electronic mode. 9. As observed by us hereinabove, the assessee who had filed his last income-tax return for A.Y. 2005-06 had therein in his said return clearly stated his address viz. Bldg 59, R. No. 1764, Sangam Housing Society Pant Nagar, Ghatkopar, Mumbai - 400075 . In the backdrop of the aforesaid fact, the A.O as per Sec. 282 r.w Rule 127(2)(a)(ii ..... X X X X Extracts X X X X X X X X Extracts X X X X
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