9911796707
TMI Blog2025 (3) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department. The electronic communication appears to be made but delivered at the wrong e-mail ID.
We may usefully refer to the judgement of Suman Jeet Agarwal [2022 (9) TMI 1384 - DELHI HIGH COURT] wherein held that when the notices were sent to unrelated e-mail address, the date on which such notice was first viewed by the assessee on e-filing portal should be construed as the date of issuance of notice. There is no rebuttal on facts from the Revenue that notice was served on the correct e-mail ID or communicated physically or through the modes prescribed under s. 282 of the Act.
Thus, we find merit in the plea of the assessee that impugned re-assessment order framed in consequence of notice issued under s. 148 which was never served, to be regarded as nonest and bad in law. Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... essment order invalid in law. 6. The impugned reassessment order u/s 147 rws 144 rws 144B of IT Act is passed without complying with the mandatory conditions laid down under the Act. 7. The Ld CIT(A) has erred both on facts and in law in confirming the addition of Rs. 43,39,290/- on account of difference in the income as per Form 26AS and income declared in audited financials without considering the explanation/submission made and this addition is also not valid in law for the reason that the addition is not made under the particular head of income as defined in section 14 of IT Act." 3. When the matter was called for hearing, Ld. Counsel broadly submitted that; (I) Invalidity of reassessment order for non-service of the notice under s.148 of the Act: The appellant has challenged the validity of the impugned assessment order on the ground that no notice u/s 148 of the Act was ever served on the appellant. The service of the notice u/s 148 of the Act is a mandatory requirement for valid reopening of assessment. The materials on record goes to show that the notice dated 30.03.2021 purportedly issued u/s 148 of the Act was never communicated to the assessee in the correct e-mail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt through letter dated 10.01.2022 (PB 106-107) in the last three para emphasized the importance of service of notice u/s 148 within the prescribed time implying that the fact of the notice u/s 148 not served within time, was an issue raised by the appellant assessee during reassessment proceedings at the first available opportunity after filling of return of income on 04.01.2022. It is therefore a case where notice was only generated through ITBA portal and the appellant had no occasion to access the notice u/s 148 dated 30.03.2021 till he came to be aware of the ongoing reassessment proceedings on 24.12.2021. It is now a settled law that the effect of notice u/s 148 of the Act, sent to an unrelated e-mail ID would amount to non-issue of a notice, hence, would invalidate all actions taken in pursuance to such notice as the service of notice u/s 148 of the Act is a sine qua non for making an assessment u/s 147 of the Act. In this context, reliance is placed on the decision of the Hon'ble Delhi High Court in the case of Suman Jeet Agarwal vs. ITO (2022) 143 taxmann.com 11 (Delhi) wherein in para 29,30,31.6&31.8, the Hon'ble Court held that where notices were sent to unrela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be appreciated that since, the date of issue of notice u/s 148 is post expiry of the time limit relaxation granted by TOLA 2020 till 30.06.2021, granted by Hon'ble Apex Court in Ashish Agarwal case (supra) is not applicable as the same was applicable only in the cases where the notices under the Old Act were issued within the above relaxation period 01.04.2021 to 30.06.2021. The notices issued post expiry of above time limit extension are void-ab-initio as the above judgement has no application on such notices. (II) Non-compliance of first proviso to sec 147 of IT Act: (a) In view of the assessment completed u/s 143(3) dt: 30.12.2016 (PB 157) and the action u/s 147 initiated after expiry of four years from the end of assessment year, the appellant's case could not have been reopened unless the escapement of income occasioned due to failure of the assessee to disclose truly & fully all material facts necessary for assessment. Thus, the AO was under obligation to identify such a failure attributable to appellant in order to cross the barrier put by the above proviso. The reason recorded (PB 155-156), the AO merely makes general observation that on account of failure on part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. (d) Non compliance of the first proviso to section 149(1) of the Act. (e) The proviso to section 149(1) of the Act lays down the restriction for issue of notice u/s 148 of the Act for any AY commencing on or before 01.04.2021 if such notice for that AY could not have been issued on account of being beyond the time limit specified under the unamended provisions applicable till 31.03.2021. In the present case the AY involved is AY 2004-05 and the it is a case of prior assessment completed u/s 143(3) of the Act. In view of the first proviso to section 147 of the Act such case could not have been taken for reopening after expiry of 4 years from the expiry of AY in question unless there is failure attributed by the AO in the reason recorded of disclosing fully and truly all material facts or failure to file the return of income u/s 139(1) or in response to notice u/s 142(1)/148 of IT Act. In the present case, the notice u/s 148 dated 31.03.2021 was issued after expiry of four years from the end of AY 2014-15 and there is no allegation of failure of disclosure as per proviso to sec 147, the notice u/s 148 for AY 2014-15 could not have been issued under the unamended Act afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and as a result thereof, the amount on which TDS deducted exceeded by 12.36%. The above difference was added to the returned income on the ground that the appellant filed to provide any documentary evidence to support the above contention. Without prejudice to challenge to the validity of reassessment proceedings, the matter can be sent back for limited verification to the AO. 2. Addition of Rs. 28,258/- The above difference is because of the TDS of income pertaining to earlier year, deducted by the customer during the year under consideration. The income in question stood accounting in preceding assessment year. Without prejudice to challenge to the validity of reassessment proceedings, the matter can be sent back for limited verification to the AO. 3. Addition of Rs. 25,27,890/- The basis of addition is rejection of explanation that the appellant has received advance of Rs. 25.27.890/- from the customers on which the TDS was deducted in the year of remittance where as the income in relation to such advance was to be accounted for in the year of supply actually taking place. The above explanation was rejected for the reason that no documentary evidence in support of above con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommunication adopted by the Department. The electronic communication appears to be made but delivered at the wrong e-mail ID. 7. We may usefully refer to the judgement of the Hon'ble Delhi High Court rendered in the case of Suman Jeet Agarwal (supra) wherein the Hon'ble Delhi High Court held that when the notices were sent to unrelated e-mail address, the date on which such notice was first viewed by the assessee on e-filing portal should be construed as the date of issuance of notice. There is no rebuttal on facts from the Revenue that notice was served on the correct e-mail ID or communicated physically or through the modes prescribed under s. 282 of the Act. 8. Having regard to the demonstration of factual matrix on behalf of the assessee and in the light of judicial view available in this regard, we find merit in the plea of the assessee that impugned re-assessment order framed in consequence of notice issued under s. 148 which was never served, to be regarded as nonest and bad in law. 9. Having regard to such conclusion, we do not consider it necessary to go into the other legal aspects or redressal of grievance on merits. 10. In the result, the appeal of the assessee is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
