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2020 (8) TMI 720 - AT - Income TaxReopening of assessment u/s 147 - notice issued at the old address of the assessee company and that too through affixture - non-issuance of notice under section 143(2) - HELD THAT:- There is no material available on record to show that the assessee had ever used the email ID rajkumar@mail.com. On the other hand, the snapshot of the MCA record available with the learned Assessing Officer, copy of which is filed at page 7 of the paper book, clearly shows that the email ID of the assessee is sagarpnp@hotmail.com. It is, therefore, difficult for us to hold that there is any proper service of notice under section 148 of the Act on the assessee. Further, there is no denial of the fact pleaded by the assessee that the assessee was being assessed by the ITO, Ward No. 5 (3) till the assessment year 2013-14 and the return of income for the assessment year 2013-14 was also filed before the, Ward number 5 (3). Circumstance that is brought to our notice by the Ld. AR and on verification of the order sheet entries made by the learned Assessing Officer what we found is that the order sheet entries do not contain any entry regarding the issuance of notice under section 148 on 30/3/2015, nor about the service thereof, in as much as subsequent to the entry regarding the recording of reasons on 20/3/2015, the next entry is dated 3/6/2015 and the order sheet silent as to the proceedings that it took place on 30/3/2015. Under order V, rule 17 of the code of civil procedure, the affixation can be done only when the assessee or his agent refuses to sign the acknowledgement or could not be found; whereas in this matter is not the case of the Revenue that the assessee is not traceable or anyone representing the assessee refused to receive the notice or to sign the acknowledgement thereof. In the circumstances we are of the considered opinion that the decision of the Hon’ble Apex Court in the case of M/s I-Ven interactive Ltd [2019 (10) TMI 785 - SUPREME COURT] has no application to the facts of the case. Non Service of notice under section 143 - conjointly reading of section 148 (1) of the Act with section 139 (4) of the Act and section 144 of the Act makes it abundantly clear that pursuant to the notice under section 148 of the Act, if an assessee files a belated return or letter reiterating his earlier written then the learned Assessing Officer is bound to issue notice under section 143(2) of the Act if he frames the reassessment under section 144/143(3) of the Act. In the case on hand, there is no denial of the fact that by letter dated 29/12/2015, in response to the notice dated 12/6/2016 under section 142 (1) of the Act issue to the assessee, the assessee submitted before the, learned Assessing Officer that the return of income filed on 4/12/2015 was in response to the notice issued and section 148 of the Act. When once the assessee submitted so that in response to the notice under section 148 of the Act the return dated 4/12/2015 was filed, it is incumbent upon the learned Assessing Officer, if at all, he proceeds to frame the assessment under section 144/143(3) of the Act, to issue notice under section 143(2) of the Act, without which, in the assessment framed would not be legal. - Decided in favour of assessee.
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