TMI Blog2012 (4) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... come Tax). Issue of notice within the prescribed time is a mandatory requirement and service of notice is a procedural requirement before completing the assessment. In these circumstances, the assessee can be treated as “served” with the notice u/s 148, which was earlier issued at the address mentioned in the return – Decided against the assessee. - W.P.(C) 8068/2011 - - - Dated:- 27-3-2012 - MR. JUSTICE SANJIV KHANNA, MR. JUSTICE R.V. EASWAR, JJ. For Appellant: Mr. Ajay Kumar Porwal, Adv. For Respondent: Mr. N P Sahni, sr. standing counsel SANJIV KHANNA, J: (ORAL) I M Constructions Pvt. Ltd., the petitioner company has filed the present writ petition for quashing the notice dated 5.8.2011 under Section 142(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the respondent/Revenue, on the other hand, has referred to the counter affidavit. It is submitted that notice under Section 148 of the Act was issued at the address mentioned in the return and was sent by speed post on 22.3.2011 by the Assessing Officer (see list of documents at page 53). The Assessing Officer also relies upon the downloaded data available on the income tax website in which the address mentioned of the assessee was/is E-72, Mohan Garden, Pipalwala Road, Uttam Nagar, New Delhi-30. It is submitted that the petitioner should have ensured that the address is rectified and recorded in the PAN records. With regard to the letter dated 10th February, 2006, it is submitted that it is addressed to Income Tax Officer Ward 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a mandatory requirement and service of notice is a procedural requirement before completing the assessment. In the said decision it has been held as under : Section 34, conferred jurisdiction on the Income-tax Officer to reopen an assessment subject to service of notice within the prescribed period Therefore, service of notice within limitation was the foundation of jurisdiction. The same view has been taken by this court in Jani v. Induprasad Devshanker Bhatt [1969] 72 ITR 595 as also in CIT v. Robert [1963] 48 ITR 177 (SC). The High Court, in our opinion, went wrong in relying upon the ratio of Banarsi Debi v. ITO [1964] 53 ITR 100, in disposing of the case in hand. The scheme of the 1961 Act so far as notice for reassessment is conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vacated. The Income-tax Officer shall now proceed to complete the assessment after complying with the requirements of law. Since there has been no appearance on behalf of the respondents, we make no orders for costs. 6. The aforesaid paragraph also shows that the requirement stipulated in Section 149 of the Act is issue of notice and not service of notice , which was the requirement under Section 34 of the Income Tax Act, 1922. For the sake of convenience, we are reproducing Section 149 of the Act, which reads as under : (1) No notice under section 148 shall be issued for the relevant assessment year, - (a) in a case where an assessment under sub-section (3) of section 143 or section 147 has been made for such assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Explanation 2 of section 147 shall apply as they apply for the purposes of that section. (2) The provisions of sub-section (1) as to the issue of notice shall be subject to the provisions of section 151. (3) If the person on whom a notice under section 148 is to be served is a person treated as the agent of a non-resident under section 163 and the assessment, reassessment or recomputation to be made in pursuance of the notice is to be made on him as the agent of such non-resident, the notice shall not be issued after the expiry of a period of two years from the end of the relevant assessment year. 7. In the present case, the assessment proceedings are still pending and have not culminated in passing of any order. In the mean ..... X X X X Extracts X X X X X X X X Extracts X X X X
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