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TMI Blog2024 (3) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act and this action of AO is contravention section 148 of the Act, which impose binding condition on the Assessing Officer to serve on the notice u/s 148 of the Act before making assessment u/s 147. It is settled position in law that service of notice under section 148 of the Act is a jurisdictional requirement must be complied with and the onus to prove the service of notice lies upon the Revenue and this contention of assessee is supported by the order of the Hon ble Delhi High Court in the case of CIT Vs. Chetan Gupta [ 2015 (9) TMI 756 - DELHI HIGH COURT] . Thus as service of notice under section 148 of the Act is a jurisdictional requirement must be complied with and the onus to prove the service of notice lies upon the Revenue, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount mentioned in the Registered Deed which further emphasizes that the cash transaction mentioned in the seized documents took place and should therefore be taken to be part of sale consideration for computation of capital gains. 3. The assessee has filed application under Rule 27 of the Income Tax (Appellate Tribunal) Rules, 1963 which is as under: 1. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in not quashing the assessment order u/s 147/144 of the Act passed without following the due procedure for reopening of the assessment. 2. On the facts and circumstances of the case, the learned CIT (A) has erred both on facts and in law in ignoring the contention of the assessee that reassessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Hon ble High court observed as under: 8. As far as the second contention is concerned, with regard to service of the notice by post, the proviso to Order V, rule 9(5) of the Code of Civil Procedure provides that the summons must be properly addressed and sent by registered post. In the present case, the notice was sent by speed post at the following address as per the postal receipt: Sh. R. K. Prop M/s. Karol Bagh, New Delhi, Pin 110065. 9. Clearly, the above is not the address of the assessee. It would have been a different matter altogether if the Revenue had been able to show from the envelope that it was addressed to the correct person but the receipt prepared by the postal department was incomplete. However, for proving this, the onu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already noted, the assessee had written a letter to the Assessing Officer soon after receiving the notice under sections 142(1) and 143(2) of the Act and that he was unaware of any-notice having been issued under section 147/148 of the Act. Moreover, the assessee entered appearance and filed his return under pro-test making it abundantly clear that he had not received the notice under section 147/148 of the Act. This argument does not, therefore, advance the case of the Revenue. Non-service of notice u/s 148 of the Act 7. In this regard, it is relevant to mention that Assessment Order u/s 147/144 of the Act dated 24.03.2014 is an ex-parte order without service of notice u/s 148 of the Act. 8. In this regard, it is relevant to mention assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns: (i) Under Section 148 of the Act, the issue of notice to the Assessee and service of such notice upon the Assessee are jurisdictional requirements that must be mandatorily complied with. They are not mere procedural requirements. (ii) For the AO to exercise jurisdiction to reopen an assessment, notice under Section 148 (1) has to be mandatorily issued to the Assessee. Further the AO cannot complete the reassessment without service of the notice so issued upon the Assessee in accordance with Section 282 (1) of the Act read with Order V Rule 12 CPC and Order Hi Rule 6 CPC. (iii) Although there is change in the scheme of Sections 147, 148 and 149 of the Act from the corresponding Section 34 of the 1922 Act, the legal requirement of service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee and against the Revenue. 10. Further, reliance is placed upon the following judicial pronouncement wherein it has been observed that hat service of notice under section 148 of the Act is a jurisdictional requirement must be complied with and the onus to prove the service of notice lies upon the Revenue: i. Harjeet Surajprakash Girotra Vs. Union Of India Ors., Writ Petition No. 513 of 2019 (Bob. HC), order dated 16.07.2019 ii. PCIT Vs. Atlanta Capital Pvt. Ltd. in ITA 665-666/2015, order dated 21.09.2015 (Del. HC) iii. CIT Vs. Eshaan Holding (P.) Ltd. (344 ITR 541) (Del.) iv. CIT Vs. M/s Hotline International Pvt. Ltd. 2007 (4) TMI 44 (Del.) v. Mrs. Shubhashri Panicker Vs. CIT 2018 (6) TMI 98 (Raj.) vi. PCIT Vs. M/s Mahla Real Estate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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