9911796707
TMI Blog2022 (7) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... t, to issue notice dated 28.03.2018 under section 148(1). Though the files pertaining to the reassessment proceedings of the appellant were transferred, the second respondent has no authority to continue the reassessment proceedings under section 129 and hence, the notice dated 14.12.2018 issued by him is also held to be invalid. The invalid notices so issued by the respondents vitiate the entire reassessment proceedings initiated against the appellant. Admittedly, no notice u/s 148 was issued by the second respondent, who is the jurisdictional assessing officer, for reassessment of the return of income of the appellant, within the time frame stipulated under the Act. In this case, the limitation period of six years for reopening the assessment for the year 2011-12 under section 147 of the Act, came to an end on 31.03.2018. In such circumstances, there is no requirement for this court to go into the other issue based on the factual matrix projected by the appellant i.e., whether the appellant has disclosed fully and truly all the material particulars that are necessary for assessment for the relevant assessment year. Assessee appeal allowed. - Writ Appeal No. 2493 of 2021 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the first respondent were sent to the second respondent for continuing the reassessment proceedings. Accordingly, the second respondent seized of the reassessment proceedings within whose jurisdiction the appellant resides. According to the respondents, in the original assessment proceedings for the assessment year 2011-2012, it was not known as to whether the appellant had disclosed the said sum of Rs.53,50,000/- received by her towards transfer of FSI rights in respect of the property situated at Mumbai and therefore, she was directed to appear before the second respondent and explain the same. In any event, there is tangible material evidence available to initiate reassessment proceedings against the appellant. 4. Upon hearing both sides, the learned Judge, having observed that the notice initially issued by the first respondent against the appellant though improper, need not be set aside, in view of the fact that the said proceedings were subsequently transferred to the Income Tax Authorities at Chennai; the commencement of the proceedings by issuing notice dated 14.12.2018 is in no way prejudiced the appellant; and she is at liberty to file her objections and avail an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reassessment proceedings by the first respondent by issuing notice dated 28.03.2018 and transmitting the files to the second respondent, who in turn, issued notice dated 14.12.2018 for continuation of the reassessment proceedings; and dismissing the writ petition, by the order impugned herein. 5.3. The learned counsel placed reliance on the decisions of various High Court and the Hon'ble Supreme Court and ultimately, submitted that when once the initiation of the reassessment proceedings is without jurisdiction and held to be invalid, the other consequential proceedings must also necessarily held to be invalid; and therefore, the writ appeal will have to be allowed, by setting aside the order impugned herein and the notices impugned in the writ petition. 6. Opposing this appeal, the learned Senior Panel Counsel appearing for the respondents would contend that the reassessment proceedings were initiated by issuing notice under section 148 of the Act by the first respondent inasmuch as the particulars relating to the PAN number of the appellant were not available and the details about the developer, who had made payment to the appellant, were not furnished. However, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge failed to appreciate the same in a proper perspective and erred in dismissing the writ petition filed by the appellant herein. 10. On the other hand, the learned senior panel counsel appearing for the respondents reiterating the averments made in the counter affidavit, justified the reassessment proceedings initiated by the respondents against the appellant, as affirmed by the learned Judge in the writ petition. 11. Before proceeding further, it is but relevant to refer to the provisions of law, based on which the notices impugned in the writ petition were issued by the respondent authorities, viz., section 148 and 129 of the Act, as follows: Issue of notice where income has escaped assessment 148.(1)Before making the 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 or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and sett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided that the assessee concerned my demand that before the proceeding is so continued the previous proceeding or any part thereof be reopened or that before any order of assessment is passed against him, he be reheard. On a plain reading of the aforesaid provisions, it is apparent that section 148 provides for issuance of notice where income has escaped assessment and the assessing officer intends to make assessment, reassessment or recomputation under section 147. Under sub-section (1) to section 148, the assessing officer shall issue notice to the assessee requiring him/her to furnish a return of income in respect of which he/she is assessable for the relevant assessment year; and under sub-section (2) to section 148, the assessing officer shall before issuing any notice under this section, record his reasons for doing so. It is also crystal clear from the provisions of section 129 of the Act that the same is applicable, when there is a change of incumbent without any change of jurisdiction and one Assessing Officer is succeeded by another in the same office. 12. In the instant case, it could be seen that the assessment of the appellant was reopened upon receipt of cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue. It is applicable when in the same jurisdiction, there is a change of incumbent and one Assessing Officer is succeeded by another. In such a case, the main Section provides that the successor officer is entitled to continue the proceeding from the stage at which it was left by his predecessor subject to the caveat, expressed in the proviso, that if the assessee demands that before the proceeding is continued the previous proceedings or any part thereof shall be reopened or that before any assessment order is passed against him, he shall be reheard, such a demand has to be accepted. If as a result of accepting the assessee's demand under the proviso to section 129 some time is taken and the assessment proceedings cannot be completed within the normal period of limitation, then the period of limitation gets extended by such time taken for giving the assessee an opportunity to reopen the earlier proceedings or for rehearing. Section 129 is applicable to normal assessments made under section 143(3) of the Act as well as the block assessments made under section 158BC of the Act.... (ii)Commissioner of Income-tax v. M.I.Builders (P) Ltd [(2014) 44 taxmann.com 360 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... khlal Shah [(2020) 120 taxmann.com 318 (SC)] and the ratio laid down therein is as follows: 10.....while the reasons for reopening the assessment have been recorded by the jurisdictional Assessing Officer viz., the Deputy Commissioner of Income Tax, Circle-2, Jamnagar, the impugned notice under section 148(1) of the Act has been issued by the Income Tax Officer, Ward 2(2), Jamnagar who had no jurisdiction over the petitioner and hence, such notice was bad on the count of having been issued by an officer who had not authority in law to issue such notice. As a necessary corollary it follows that no proceedings could have been taken under section 147 of the Act in pursuance of such invalid notice. In the aforesaid premises, the impugned notice under section 148(1) of the Act as well as all the proceedings taken pursuant thereto cannot be sustained. The legal proposition laid down in the aforesaid decisions is that notice under section 148 is mandatory to reopen/ reassess the income of the assessee and such a notice should have been issued by the competent assessing officer, who has jurisdiction ; The jurisdictional Assessing Officer, who records the reasons for reope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment proceedings and granting liberty to the appellant to file objections and avail the opportunity of personal hearing to be provided, by the order impugned herein, which is liable to be set aside, in the considered view of this court. 16. As already held by this court, the first respondent, who recorded the reasons for reopening the assessment under section 148(2), has no jurisdiction over the appellant, to issue notice dated 28.03.2018 under section 148(1). Though the files pertaining to the reassessment proceedings of the appellant were transferred, the second respondent has no authority to continue the reassessment proceedings under section 129 and hence, the notice dated 14.12.2018 issued by him is also held to be invalid. The invalid notices so issued by the respondents vitiate the entire reassessment proceedings initiated against the appellant. Admittedly, no notice under section 148 was issued by the second respondent, who is the jurisdictional assessing officer, for reassessment of the return of income of the appellant, within the time frame stipulated under the Act. In this case, the limitation period of six years for reopening the assessment for the year 2011-12 u ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
