9911796707
TMI Blog2025 (4) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... 143(2) on the Assessee. 3) Commissioner of Income Tax has erred in confirming the addition of Rs. 2,20,09,000/-u/s. 68 made by Assessing Officer. Appellant prays to delete the same as provisions of Sec.68 are not at all applicable to the Facts of the case. " 4) Commissioner of Income Tax (Appeals) has further erred in observing "The Claim u/s 54F @Rs.2,05,78,694/- Which is investment in residential house, is rejected because Transaction leading to Capital Gain itself is rejected and is treated as business income." Appellant prays for declaring claim of Long Term Capital Gain & u/s 54F is valid and allowed, And declare that order is Bad in Law, being without application of mind and violative of powers of CIT(A). 5) Commissioner of Income Tax (Appeals) has erred in not being Just & Fair, Appellant pray for relief accepting Returned Income. 6) Assessee denies liability to Interest u/s 234A, 234B, 234C etc. Prays to cancel the same. 7) Appellant prays to add, alter, amend, take additional grounds, submit additional evidence and / or during or pending proceeding. Additional Ground Income Tax Officer Ward-3(3), Pune has erred is passing Order u/s 143(3) without havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /R-3/Assign Order-1/2015-16/414 dated 05-08-2015. 3. The notice issued on 17-08-2015 was returned back with the remarks that the assessee is not in given address. The address of the assessee is 'Shri Dhanottam Vasant Lonkar, 268-A, Shivajinagar, Pune 411005' on which Notice u/s 143(2) was sent. xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx On perusal of the PAN data base of the assessee, it is found that the assessee's new address is 301, Kamla Residency, CTS No. 1050, Pune - 411016 having land-line and mobile no. 20-25677702 and 9822325282 respectively. A notice u/s 142 rws 129 issued on 15-02-2016 and served to the assessee on his new address requesting to submit the details as per notice by 24-02-2016. Assessee was also contacted over landline and mobile from time to time to submit the details. A SMS from mobile also sent to the assessee to submit the details. Assessee vide his letter dated 01-03-2016 has stated that: .... Further, I reiterate that neither had I received any notice nor any communication as per the provisions of the Income Tax Act, 1961 for the assessment proceedings for A. Y. 2013-14 till date except an SMS received on 27-02-2016. In absence of any not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no reason for the same being unserved upon you. It is also seen that the notice which was sent by RPAD on 03-09-2014 has not been received back. Proof of dispatch through RPAD in the form of acknowledgement by Department of Post (dated 10-09-2016) is hereby enclosed for your reference. In respect of the above, you are once again being provided an opportunity by the undersigned to submit the documents as per Notice u/s 142 dated 15-02-2016. If your submission either personally or by your Authorized Representative will not be received in the office of the undersigned on or before 28-03-2016, it will be assumed that you have nothing to say and the assessment will be completed u/s 144 of the Income Tax Act, 1961.' On 28-03-2016, a letter dated 28-03-2016 received in this office on 28-03-2016 from the assessee submitted that: "The assessment proceedings are being conducted unlawfully without following the procedures laid down in the Income Tax Act and Rules. Hence, the proceedings are null and void ab initio. I need 2 days time to submit the information as asked by you'." 5. From the above contents of the assessment order, we can notice that the issue of not serving t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment proceedings completed without issuance of notice U/s 143(2) of the act and void ab initio and liable to be quashed. Delhi High Court Commissioner of Income Tax vs Lunar Diamonds Ltd. on 3 March, 2005 Equivalent citations: (2005) 197 CTR Del 312, 2006 281 ITR 1 Delhi Gujarat High Court Deputy Commissioner Of... vs Mahi Valley Hotels And Resorts on 31 August, 2005 Equivalent citations: 2006 287 ITR 360 G M/s. Cosmat Traders Pvt. Ltd Vs ITO (ITAT Kolkata) ITA No. 457/Kol/2020 Date: 21/04/2021, Assessment Year: 2012-13 All ITAT Kolkata It was further submitted that issuance of notice under Section 143(2) of the Act being prerequisite, in the absence of such notice, the entire proceedings would be invalid. Income Tax Appellate Tribunal-Mumbai Sanjeev Chandrakant Deo, Mumbai vs ITO 29(3)(3), Mumbai on 25 October, 2021 2203/1/2019 the fundamental requirement for initiation of proceedings under section 147 of the Act stands unsatisfied/unfulfilled. This being a jurisdictional error, the consequence which follows would result in invalidation of the assessment order. Therefore, we hold that the assessment order passed under section 143(3) r.w.s. 147 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nottam Vasant Lonkar, Shri Dhanottam Vasant Lonkar, 268-A 301, Kamala Residency Shivaji Nagar, CTS No.1050 Pune-411005 Pune-411016 The disputed address is entered as the new address in PAN database having landline no 20-25677702 and 9822325282 respectively. During appellate proceedings the copy of the notices filed were perused and the following picture emerges. Table 1 Notice u/s. Date of notice Address used 143(2) 3/9/2014 Shivaji Nagar address 142(1) 17/8/2015 Shivaji Nagar address 142(1) 15/2/2016 Kamala residency, model colony address 143(3) order 31/3/2016 Kamala residency, Model colony address Letter to CIT(Appeals) 5/12/2017 Kamala residency, Model colony address Letter to CIT(Appeals) 1/2/2018 Kamala residency, Model colony address 5. From the above it can be seen that once the address changed in the PAN database, the new address was used in the notices send subsequently. The tax payer himself has used the Kamla Residency address in the correspondences with the dept. Moreover taxpayer has not objected to the usage of Kamla residency address in the 143(3) order. Considering these facts the argument of the taxpayer that notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has not received any such notice on the address which has been mentioned in the income-tax return as well as the one mentioned in the PAN database also. He further stated that all the facts have been narrated in the affidavit where it has been stated that the address of the assessee has always been "1286A, Shivaji Nagar Pune 411005" but the address mentioned in the notice issued u/s. 143(2) of the Act is of "268A, Shivaji Nagar, Pune - 411005" which has never been his address. Details have been filed by the assessee in the paper book along with the facts about the notice being not served validly u/s. 143(2) of the Act summarized by the assessee in the following manner : "Issue: Notice u/s 143(2) not received by Assessee. As issued on different Address. i. Assessing Officer states, it is issued on address as per PAN DATA and RPAD envelop not received Back, unserved. ii. PAN DATA SHOWS THAT ADDRESS as Office Address. However, PAN DATA CARD Specifically marked Address for Correspondence as Residential Address. iii. Affidavit stating all facts submitted before ITAT with cross references of Proof. 268A Shivajinagar had never been his address, it was 1286A Shivajinagar. iv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding that the AO was justified in issuing notice at address available as per PAN database more particularly when return has been filed in e-module scheme : 1. Ramesh Khosla vs. ITO (1985) 154 ITR 556 2. Capital Gem Overseas(P) Ltd. Vs. ITO (2006) 101 ITR 117 (Delhi) 3. ACIT Vs. M/s. Sonal Industries Ltd. - ITA No.5677/Del/2011, dated 29.02.2012 10. Ld. Counsel for the assessee gave following written note distinguishing the case of the assessee with that of the judgment of Hon'ble Supreme Court in the case of PCIT Vs. I. Ven Interactive Limited (supra) which reads as follows : "In this case, After change in Address, Company filed Return giving new address. 1. However, Notice u/s 143(2) was issued and served an Old address, As per PAN data, Associate Company received Notice. 2. Company objected during the course of proceeding as to Non-service of Notice, in terms of Proviso to Sec.292BB. 3. On the basis of Submission before H.C. that Change in address was communicated vide letter dated 06/12/2005, High Court, confirmed ITAT order, cancelling Assessing Officer's Order for non-service of Notice u/s 143(2). Supreme Court held in favour of Revenue for the reasons tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under sub-section (1) of section 142, the Assessing Officer or the prescribed income-tax authority, as the case may be, if, considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under-paid the tax in any manner, shall serve on the assessee a notice requiring him, on a date to be specified therein, either to attend the office of the Assessing Officer or to produce, or cause to be produced before the Assessing Officer any evidence on which the assessee may rely in support of the return. Provided that no notice under this sub-section shall be served on the assessee after the expiry of three months from the end of the financial year in which the return is furnished." 12. On perusal of the above provision, we observe that for A.Y. 2013-14, the return of income which was filed on 27.09.2013 a valid notice u/s. 143(2) of the Act was required to be served upon the assessee on or before 30.09.2014. Ld. AO has claimed that notice u/s. 03.09.2014 was issued u/s. 143(2) of the Act and was served upon the assessee. It is specifically stated that notice u/s. 143(2) needs to be served on the assessee withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... address 268A, in place of 1268A, Shivaji Nagar in the PAN application or it was the mistake of the Data Entry operator if the details in the PAN data which is wrongly mentioned as 268A instead of 1268A. However, copy of PAN application should be filed but again it was argued by the ld. Counsel for the assessee that they have specifically mentioned communication address to be the residence address and therefore no valid notice was served. 16. We further observe that section 282 of the Act deals with the provisions for service of notice generally and the same is reproduced below: "Service of notice generally. 282. (1) The service of a notice or summon or requisition or order or any other communication under this Act (hereafter in this section referred to as "communication") may be made by delivering or transmitting a copy thereof, to the person therein named,- (a) by post or by such courier services as may be approved by the Board; or (b) in such manner as provided under the Code of Civil Procedure, 1908 (5 of 1908) for the purposes of service of summons; or (c) in the form of any electronic record as provided in Chapter IV of the Information Technology Act, 2000 (21 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess is "301, Kamala Residency, CTS No.1050, Pune 411016" and then the notice u/s. 142(1) was issued and served upon the assessee. Here. Ld. AO has referred the address "301, Kamala Residency, CTS No.1050, Pune 411016" as new address. We however find that this observation of ld. AO is totally incorrect because this was always the address of the assessee as per the PAN database and also the address mentioned in income-tax return and there is no change in that address. Ld. AO has himself observed that "268A, Shivaji Nagar, Pune 411005" is wrong address, therefore, when the notice u/s. 142(1) was issued on 17.08.2015 it was returned unserved, the same would have been the fate of the notice u/s. 143(2) of the act dated 03.09.2014 issued u/s. 143(2) of the Act at wrong address "268A, Shivaji Nagar, Pune 411005". 19. We therefore find that the address of "301, Kamala Residency, CTS No.1050, Pune 411016" is not a new address given by the assessee after the filing of the income-tax return but this address always existed in the PAN database and was the address on which the assessee opted for receiving any communication and also mentioned the same address furnishing its return of income for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the provisions of section 282 of the Act and section 27 of the General Clauses Act to understand/explain the expressions "serve" or "given" or "sent". 21. In yet another case, Hon'ble Bombay High Court in the case of Asstt. CIT v. Geno Pharmaceuticals Ltd. [2013] 32 taxmann.com 162/214 Taxman 83 has held that notice under section 143(2) of the Act is mandatory, and in absence of such service, the Assessing Officer cannot proceed to make an inquiry on return filed in compliance with notice issued under section 148 of the Act. 22. In the case(s) of Baljhadar Mal Kuthiala Vs. CIT 31 ITR 930 (Pun), Mangat Ram Kuthiala Vs. CIT 38 ITR 1 (Pun) and in the case of The Bhopal Trading Company Vs. CIT 28 ITR 478 (All HC), it has been held that if the notice duly addressed comes back with the word 'refused' endorsed thereon by the postal authorities, proper service may be presumed unless the contrary is proved by the assessee. In the instant case, the Revenue authorities have failed to place any record from the side of postal authorities of having not been able to serve the notice due to refusal to receive notice. Also, the Revenue authorities have admitted at a later stage that the add ..... X X X X Extracts X X X X X X X X Extracts X X X X
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