9911796707
TMI Blog2025 (3) TMI 1225X X X X Extracts X X X X X X X X Extracts X X X X ..... der of Respondent No. 1 dated 24.03.2023 at Annexure-G and order of Respondent No. 2 dated 04.11.2019 at Annexure-A and further be pleased to quash the demand notice issued u/s.156 dated 05.11.2019 at Annexure-B. B) Pending the hearing and final disposal of this application, this Hon'ble Court be pleased to stay the recovery of demand arisen in pursuance of issuance of notice u/s. 156 of the Act at Annexure-B. C) this Hon'ble Court be pleased to grant any further or other relief as this Hon'ble Court deems just and proper in the interest of justice, and D) This Hon'ble Court be pleased to allow this application with costs against the respondent." 4. Brief facts of the case are that the petitioner is a legal heir and wife of late Rajesh S. Shah who was a Non Resident Indian and settled in United States of America since last 15 years and before that he was working with the Telecom department in India. Late Rajesh S. Shah had left India in the year 2004. It is the case of the petitioner that late Rajesh S. Shah did not have any taxable income in India and therefore, he had not filed return of income for any subsequent years. 5. The petitioner and her late husba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 148 of the Act along with proof of service of the said notices to late Shri Rajesh Shah. The petitioner's tax consultant had also forwarded mail dated 02.03.2023 reiterating the request of supplying of copies of notices along with the proof of service. 11. Respondent No. 1 thereafter passed an order under section 264 of the Act dated 24.02.2023 rejecting the revision application preferred by the petitioner and confirming the order dated 4.11.2019 passed by the Assessing Officer. 12. It is the case of the petitioner that since respondent No. 2 had not provided the proof of notices served, the petitioner preferred an application under the Right to Information Act, 2005 addressing a mail dated 30.03.2023 wherein certain documents including the details/proof of service of notice issued under section 148 of the Act dated 30.03.2019 along with the email id on which the notices were alleged to have been sent by respondent No. 2. 13. The said application was disposed off by passing an order under section 7 (1) of the Right to Information Act, 2005 dated 03.05.2023. 14. The petitioner once again addressed a mail dated 20.06.2023 to the office of Deputy Commissioner of Income Tax, Cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner in the reply dated 3.7.2023 sent by the respondent that no notices were served by affixture during the assessment proceedings upon the late husband of the petitioner. It was therefore, submitted that without entering into the merits of the matter with regard to alleged cash deposit of Rs. 18,25,000/- which is duly explained by the petitioner in the revision application under section 264 of the Act, the entire assessment proceedings are without jurisdiction and are liable to be quashed and set aside. 20. It was further submitted that the respondent while disposing off the revision application has committed an error in interpretation of the provision of section 264 of the Act by literally interpreting the word "revision" as per the Black's Law Dictionary whereas as per the provisions of section 264, the Commissioner has ample powers to pass an order as he may think fit. It was therefore, submitted that when the petitioner has explained in detail on merits with regard to source of cash deposit made by her late husband in the year 2011, revisonal authority could not have confirmed the addition by dismissing the revision application. 21. On the other hand learned advocate Mr. Rud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice records. If there is change in communication address, the assessee is required to update the same in the department's records. In this case, the petitioner in her application u/s 264 of the Act has herself stated that they left India in 2004 and have been settled in USA for more than 15 years and after the assessee left India in the year 2004, he did not have any taxable income in India, and hence, he did not file return of income for any subsequent assessment year. Therefore, when the assessee decided to leave India, the assessee who was filing income tax return ought to have informed the jurisdictional Assessing Officer about his communication address, which the assessee failed to do. Therefore, the claim of the petitioner that notice was not served on the assessee cannot be acceded to. The procedure for service by post is given in section 27 of the General Clauses Act, 1897 which is mentioned as under: "Meaning of service by post:-Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a valid order and accordingly, the order passed u/s 264 of the Act by the Respondent No. 1 by giving detailed reasons is not erroneous on law as well as on facts. Therefore, it is requested that the petitioner's request to quash these orders may kindly be rejected. 15. With reference to paragraph 3(A), the petitioner contends that the order passed by the Respondent No. 1 u/s 264 rejecting the application preferred by the petitioner is wholly erroneous in law, as well as, on facts as the Commissioner is free to pass an order as he thinks fit which obviously includes the power of quashing the order or annulling the order and the word 'as he thinks fit' is much wider in connotation and includes the power to annul or quash the assessment and that he has misdirected himself on the word 'revision' used in the heading of section 264 and conveniently ignored the words 'as he thinks fit', which is a part of main provision. The petitioner has filed the petition u/s 264 of the I.T. Act, 1961 which is a beneficial provision, as an order therein cannot be passed which is prejudicial to the assessee. At the same time, the provision is not akin to an appellate matter wherein the jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d u/s 148 remained unserved, in that circumstances, the non-service of jurisdictional notice issued u/s 148 becomes fatal to the assessment order passed in pursuance of such notice. In this case, it can be seen that the petitioner has not denied the fact that notice u/s 148 of the Act was issued by the Respondent No. 2 in the case of the assessee, Shri Rajesh Shah but has claimed that the said notice remained un-served. The notice u/s 148 of the Act was issued on the communication address as registered with the department and as reflecting in ITBA and the service has been made through speed post/registered post, and the despatch numbers are duly indicated on the office copies maintained in office records. If there is change in communication address, the assessee is required to update the same in the department's records. In this case, the petitioner in her application u/s 264 of the Act has herself stated that they left India in 2004 and have been settled in USA for more than 15 years and after the assessee left India in the year 2004, he did not have any taxable income in India, and hence, he did not file return of income for any subsequent assessment year. Therefore, when the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x return ought to have informed the jurisdictional Assessing Officer about his communication address, which the assessee failed to do. Therefore, the claim of the petitioner that notice was not served on the petition cannot be acceded to. Considering the meaning of service by post as given in section 27 of the General Clauses Act, 1897 and also the observation made by the Hon'ble Supreme Court as mentioned in the preceding paras 2.8 & 2.9, the notice was well served on the petitioner on the communication address available with the department. Therefore, the order passed u/s 144 r.w.s. 147 of the Act by the Respondent No. 2 is a valid order and accordingly, the same may be upheld and the petition filed by the petitioner in this regard may kindly be rejected. 18. With reference to paragraph 3(A.3), the petitioner prays to quash the order passed u/s 144 r.w.s. 147 dated 04.11.2019 and subsequent order passed u/s 264 dated 24.03.2023 for want of valid service of the jurisdictional notice u/s 148 dated 30.03.2019. In this case, as narrated in the preceding paras, notice u/s 148 of the Act during the assessment proceedings has been issued on the communication address as registered with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause such inquiry to be made and, subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit. (2) The Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner shall not of his own motion revise any order under this section if the order has been made more than one year previously. (3) In the case of an application for revision under this section by the assessee, the application must be made within one year from the date on which the order in question was communicated to him or the date on which he otherwise came to know of it, whichever is earlier: Provided that the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner may, if he is satisfied that the assessee was prevented by sufficient cause from making the application within that period, admit an application made after the expiry of that period. (4) The Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner shall not revise any order under this section in the following cases- (a) where an appeal against the order lies to the [Deputy Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pass such order thereon, not being an order prejudicial to the assessee as he thinks fit, meaning thereby that Commissioner while exercising the jurisdiction under section 264 of the Act, can look into the entire matter and after calling for record of the assessment proceedings under the Act, can make an inquiry or cause such inquiry to be made and thereafter subject to the provisions of the Act, pass an order which is not prejudicial to the assessee as he thinks fit. 27. In such circumstances, the interpretation of section 264 of the Act by the respondent is contrary to the provision itself and the impugned order could not have been passed by resorting to such truncated interpretation of section 264 to limit the powers of the Commissioner to revise the order only on the ground of mistake or correction, if any, in the assessment order. 28. In view of above foregoing reasons, the petition succeeds and is accordingly allowed. The impugned order dated 24.03.2023 passed under section 264 of the Act is hereby quashed and set aside and the matter is remanded to the respondent to pass a fresh denovo order under section 264 of the Act after considering the facts of the case and submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
