2021 (11) TMI 915 - AT - Income Tax

Reopening of assessment u/s 147 - Non issuing mandatory notice u/s 143 (2) - validity of Notice by affixture - HELD THAT - Serving officer could not state in his report the any name and address of the witnesses who have identified the house of the assessee and in whose presence the notice was affixed. Further, the affidavit in assessment records is missing thus in contravention of Rule 20 of Order V of CPC 1908. We find that in case of Jagannath Prasad 1976 (9) TMI 19 - ALLAHABAD HIGH COURT there was only single attempt by the inspector and the reason enumerated was that door was locked. Thus the findings of above case are squarely applicable in assessee s case. In view of the above judicial pronouncements, we are of the view that the Notice by affixture needs to be done in accordance with procedure laid down in by Order V, rule 17-20 of CPC Thus the reassessment proceedings, so initiated, are bad in law as the Assessing Officer failed to serve the notice u/s 143(2) of the I.T. Act on the assessee. Accordingly, we quash the assessment order framed u/s 144 r.w.s. 147 of the IT Act for A.Y.2009-10 - Decided in favour of assessee.

Issues Involved:
1. Legality of reassessment proceedings initiated without satisfying mandatory jurisdictional conditions under section 147 of the Income Tax Act, 1961.
2. Validity of reassessment proceedings due to non-issuance of mandatory notice under section 143(2) of the Income Tax Act, 1961.
3. Sustaining disallowance of house rent allowance under section 10(13A) of the Income Tax Act, 1961.
4. Sustaining disallowance of loss claimed under the head 'short term capital gains' from the sale of shares.
5. Sustaining addition towards alleged unexplained cash credits under section 69 of the Income Tax Act, 1961.
6. Violation of principles of natural justice due to inadequate opportunity of being heard.

Detailed Analysis:

1. Legality of Reassessment Proceedings under Section 147:
The assessee contended that the reassessment proceedings were initiated without satisfying the mandatory jurisdictional conditions set out in section 147 of the Income Tax Act, 1961. The Tribunal noted that the notice under section 148 was sent to an incorrect address, and the reasons recorded by the Assessing Officer indicated that the assessee was residing in Bangalore. The Tribunal found that the reassessment proceedings were initiated without proper jurisdictional satisfaction, thus rendering the proceedings invalid.

2. Validity of Reassessment Proceedings Due to Non-Issuance of Notice under Section 143(2):
The Tribunal extensively analyzed the service of notice under section 143(2), which is mandatory for reassessment proceedings. The notice was initially sent to an incorrect address and was returned unserved. The Assessing Officer claimed that another notice was issued and served by affixture, but the Tribunal found that the procedure for service by affixture, as per the Code of Civil Procedure, was not followed. The Tribunal concluded that the service of notice by affixture was not valid, and the reassessment proceedings were, therefore, null and void.

3. Disallowance of House Rent Allowance under Section 10(13A):
The Tribunal did not specifically address the merits of the disallowance of house rent allowance under section 10(13A) due to the quashing of the reassessment proceedings. The issue became academic as the reassessment order itself was quashed.

4. Disallowance of Loss Claimed under 'Short Term Capital Gains':
Similarly, the Tribunal did not delve into the merits of the disallowance of loss claimed under 'short term capital gains' from the sale of shares. This issue also became academic following the quashing of the reassessment order.

5. Addition towards Alleged Unexplained Cash Credits under Section 69:
The Tribunal refrained from addressing the merits of the addition towards alleged unexplained cash credits under section 69 of the Income Tax Act, 1961, as the reassessment order was quashed, rendering the issue academic.

6. Violation of Principles of Natural Justice:
The assessee argued that the reassessment proceedings violated the principles of natural justice due to inadequate opportunity of being heard. The Tribunal noted that the Assessing Officer failed to provide adequate opportunity for cross-examination of the Inspector and witnesses regarding the service of notice. This further supported the Tribunal's decision to quash the reassessment proceedings.

Conclusion:
The Tribunal quashed the reassessment proceedings for the assessment year 2009-10 due to the failure of the Assessing Officer to serve the mandatory notice under section 143(2) of the Income Tax Act, 1961. Consequently, the Tribunal did not address the other grounds on merits, as the reassessment order itself was invalid. The appeal filed by the assessee was allowed, and the appeal filed by the Revenue was dismissed.

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