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2019 (5) TMI 1538 - AT - Income TaxCondonation of delay - sufficient cause - as per revenue assessee, as a matter of strategy thought it fit to seek rectification – a separate matter altogether entailing only a mistake/s apparent from record - HELD THAT:- We are inclined to admit the appeal. The reason is two-fold. The explanation, whatever its’ merits, is bona fide. CIT(A) was appealed both on the legal ground/s, since rejected, as also on merits (of the addition). While, the assessee lost on both, his challenge to the quantification, made separately, was lost sight of by the CIT(A) while deciding the appeal on the merits of the addition. The assessee sought rectification prior to preferring an appeal, which otherwise could be raised during the hearing of the appeal, challenging the quantification of the addition sustained, or in appeal against the section 154 order, i.e., were the assessee to be unsuccessful in obtaining the rectification sought. The charge of mala fides by the Revenue is based on suspicion, perhaps considering that the assessee admits to have adopted, on own violation, a particular course of action. The second reason is that the said course – whatever be its’ merits, is, without doubt, only as per the advice of the assessee’s legal counsel. The same should not therefore operate to the detriment of the assessee (refer: Concord of India Insurance Co. Ltd. v. Nirmala Devi and Ors. [1979 (4) TMI 29 - SUPREME COURT]. The appeal was accordingly admitted, and the hearing in the matter proceeded with. Reopening of assessment u/s 147 - as urged notice u/s. 133(6), 147/148 and notice u/s. 142(1), 143(2) and Assessment Order were never validly served on the assessee - HELD THAT:- Referring to the issue of service of notice u/s. 148(1), a question of fact, the same assumes relevance as, in its absence, the matter would necessarily have to travel back to the file of the AO to enable him to provide opportunity to the assessee to join the proceedings and state his case, and frame the assessment accordingly per a speaking order. In this regard, the Revenue, on its’ part, has also not shown that the address at which the said notice was sent was the assessee’s current address at the relevant time, the date of its issue, i.e., as per its’ record. The same is clearly not either the assessee’s business or residential address, nor as that stated in the PAN. The service of notice u/s. 148(1) cannot, accordingly, be regarded as proper. Even as no prejudice survives or is even claimed, the notice u/s. 148(1) remains uncomplied with in consequence. Needless to add, the AO shall also take into account the income as already returned by the assessee. The matter, setting aside the assessment, is restored back to the file of the AO for the purpose. That is, to proceed from the stage of the issue of notice u/s. 148(1), which is undisposed.
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