TMI Blog2013 (11) TMI 1236X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A), Jammu for the assessment years 1999-2000 to 2006-07 as per details given below:- S.No. ITA No. Name of the party Asstt. Yr. CIT(A) Date of order 1 to 4 141,142,149,150, M/s. Goodfaith Constructions Pvt. Ltd. 1999- 2000, 2000-01, 2001-02, 2003-04, Jammu 14.02. 2011 5 to 8 171, 172, 173 174(Asr)2011 -do- 2002-03, 2004-05, 2005-06 2006- 07 -do- 14.03. 2011 9 to 12 133 to 136 (Asr)/2011 M/s. Healthy Holding Pvt. Ltd. 1999- 2000, 2000-01, 2001-02, 2003-04, -do- 14.02. 2011 13 to 16 165 to 168(Asr)/ 2011 -do- 2002-03, 2004-05, 2005-06 2006- 07 -do- 14.03. 2011 17 to 19 145, 158, 159 (Asr)2011 M/s. Govind Impex Pvt. Ltd Jammu 1999- 2000, 2000-01 2001- 02 -do- 14.02. 2011 20 to 24 169, 211, 212, 170 213 (Asr)/2011 -do- 2003-04, 2002-03, 2004-05, 2005-06 2006- 07 -do- 14.03. 2011 2. In the case of Goodfaith, Construction (P) Ltd; Jammu the assessee has raised following common grounds in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatus as a company." 3. In the case of M/s. Healthy Holdings Pvt. Ltd; Jammu the assessee has raised following common grounds in all the appeals: "1. That the Ld. CIT(A), Jammu has grossly erred in upholding the order passed by the Assessing Officer which is illegal, arbitrary and contrary to facts. 2 That the Ld. CIT(A), Jammu has grossly erred in rejecting the contention of the assessee regarding illegal service of notice u/s 148 dated 28.03.2006 by affixture in the first instance and in ignoring the provisions of order 5 Rule 20 of Civil Procedure Code. 3. That the remand report dated 30.09.2010 given by the Assessing Officer and reproduced in the appellate order was never confronted to the assessee by Ld. CIT(A), Jammu. 4. That the order passed by Ld. CIT(A), Jammu is perverse as the findings given by him on the issue of "illegal service of notice u/s 148 are based on facts contrary to evidence on record. 5. That the Ld. CIT(A), Jammu has grossly erred in relyng upon the decision of Yogesh Kumar Sons (HUF) 115 TTJ 696 (Asr) and ignoring the direct decisions of Punjab Haryana High Court in the case of CIT vs. Avi Oil India Ltd. reported at 323 ITR 242 (P H). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rect decisions of Punjab Haryana High Court in the case of CIT vs. Avi Oil India Ltd. reported at 323 ITR 242 (P H). 6 That the Ld. CIT(A) Jammu has completely misdirected himself in not appreciating that the proceedings for A.Y. 1999- 2000 had never traveled to ITAT, Amritsar Bench and that he was passing the first appellate order. 7 That the Ld. CIT(A), Jammu has grossly erred in rejecting the application of the assessee to place additional evidence on record regarding specific business activity having been carried out by the assessee. 8. That the Ld. CIT(A), Jammu has grossly erred in confirming the action of the A.O. in invoking proceedings u/s 148 without any new facts having been brought on record and acting merely on change of opinion and direction of superior officers. 9. That the Ld. CIT(A), Jammu has grossly erred in not appreciating the doctrine of resjudicata applicable to assessee because there was no change of facts or law with regard to nature of the income as "Business Income" as in past asstt. years. 10 That the Ld. CIT(A), Jammu has grossly erred in confirming the order of the A.O. in departing from the principle of consistency of accepted history of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by both sides were forwarded to each side for their respective comments. It was also mentioned by the ld. CIT(A) that each and every issue raised and written submissions filed during the course of assessment proceedings were forwarded to both the parties so as to provide adequate opportunity to both the parties. The assessee filed written submissions for the assessment year 2003-04 and the ld. CIT(A) has mentioned in para 3(b) of his order that identical submissions applies for other assessment years also as the core issue is identical in all assessment years except some minor modifications. Such written submissions of the assessee are part of the order of CIT(A) at page 3 to 21. The Ld. CIT(A) observed that written submissions and the arguments of the assessee are more or less comprises of the following: i. The first contention raised is technical/legal in nature that the service of notice in the first place through affixture was not a valid service hence the assessment was illegal ( this plea is raised for the first time in this second innings). Certain case laws are filed in support. ii. The assessee is neither an owner of the property nor a deemed owner of the propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Kuber Tobacco Products (P) Ltd. vs. DCIT decided by ITAT Delhi Special Bench 120 TTJ (Del) SB 577 is also of no help that holds that the amendment in section 292BB w.e.f. A.Y.2008-09 is not retrospective, as the AO has resisted from over emphasizing his reliance as to this amendment but has relied on the fact that the case laws relied on by the assessee were distinguishable considering the facts of the present case in view of the action of the Assessing Officer by serving the notice through speed post and as an alternate service, through affixture when it couldn't have served as per the satisfaction recorded by the A.O. 4k. It is decided in following cases that service of notice by RPAD which has not received back unserved, raises the presumption of the service of notice on the assessee: i) CIT vs. Vins Overseas India Ltd. 305 ITR 320 (Del) ii) CIT vs. Yawce Industries Ltd. 306 ITR 309 (Del) iii) CIT vs. Madhsy Films (P) Ltd 301 ITR 69 (Del) iv) CIT vs. Shanker Lal Ved Parkash 300 ITR 243 (Del) No rebuttal to the above contention brought out by A.O. has been raised by the assessee, instead the assessee had replied to the AO as reported in the above referred report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i), we do not find any reason to take a view different from the view taken by the Tribunal. No doubt that an appellate authority can allow question to be raised for the first time even if such a question was not raised at a lower forum but the discretion to do so has to be exercised in the interest of justice in the facts and circumstances and no mechanically. Normally a question of fact may not be allowed to be raised for the first time as it may prejudice the other side. If such question is raised at the earliest opportunity, the other side can lead evidence which it may not be able to do if such a question is raised for the first time before the appellate authority. Of course, there can be no total bar on such question being allowed, if interest of justice so requires. In National Thermal's case (supra) it has not been laid down that in every case a question of fact can be mechanically allowed to be raised for the first time. The Madhya Pradesh High Court in CIT vs. Premium Capital Market Investment Ltd. (2005) 275 ITR 260 (MP) held that question of validity of notice may not be allowed to be raised for the first time in appeal. Subsequent legislative amendment adding s. 292 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , erect upon premise and plant/furnitures/fixtures. d) Tenants had unfettered right to renewal and the right to terminate the lease. iv) Addendum to lease deed dated 20.11.91 Clause 'v' of this addendum provided that lease deed would then be co-terminus with the subsistence of the sub-tenancy of M/s. ANZ Grindlays Bank or its successors. The lease shall be continued to remain lease so long as ANZ Grindlays Bank or its successor remain in possession of the property:.... iii) Sublease deed between assessees and ANZ Grindlays Bank dt.31.06.91 In view of the clauses of original lease deed and the addendum, the assessee need not to have any concurrence of Mrs. Ranjit Kaur, the landlady. She is not a signatory to their deed. The lease was 9 years term. Renewal for 9 more years at the option of the bank." 11. The Ld. CIT(A) after discussing the contention of the assessee , facts on record and additional evidence filed by both sides, pleas of the assessee as to consistency in proceedings, arguments of the assessee and the case laws relied upon , dismissed the appeal of the assessee by confirming the action of the A.O. The said findings are available at pages 32 to 39 of CIT(A)' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee vide this office letter No.707 dated 25.01.2011 and a reply has been received that the decision of Apex Court is binding. The Authorized Representative reiterated the arguments taken in support of additional ground taken in respect of service of notice. It is to reveals once again reiterate that since two other companies are also lessees in respect of the same premises and rented their shares to M/s. ANZ Grindlays Bank Ltd. the order of the Hon'ble Supreme Court apply to them also. The relevant part of the decision of Hon'ble Supreme Court in criminal appeal No.41 of 2006 in case of M/s. Govind Impex (P) Ltd. has been decided on 07.12.2010 are reproduced as under: "The rival submissions necessitate examination of Section 269UA(f)(i) of the Act, particularly its explanation, same reads as follows: (i) in relation to any immovable property referred to in sub-clause (i) of clause (d), means transfer of such property by way of sale or exchange or lease for a terms of not less than twelve years, and includes allowing the possession of such property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the details below:- 12. That the Lessee may at its option and discretion renew the lease for a further period of nine years after the expiry of the term of the present lease on 31st May, 2000. If the Lessee shall be desirous of such renewal it shall give a notice of such renewal to the Lessors at least three months prior to the expiry of the term in the present lease deed. The subsequent renewals of the Lease Deed shall also be got duly signed and registered. The renewals of the Lease shall be on the same terms and conditions. 7. Mr. Salve submits that statute providing for penal prosecution has to be construed strictly. He refers to Clause 12 aforesaid and contends that it shall govern the field. Mr. Bhatt submits that it is Clause 1 of the lease deed which shall govern the issue. We do not have the slightest hesitation in accepting the broad submission of Mr. Salve that Penal statute which make an act a penal offence or impose penalty is to be strictly construed and if two views are possible, one favourable to the citizen is to be ordinarily preferred but this principle has no application in the facts of the present case. There is no serious dispute in regard to the interpre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Dealing with the subject, Justice G. P. Singh states in Principles of Statutory Interpretation (7th edition, 1999) (page 233). "Incorporation of an earlier Act into a later Act is a legislative device adopted for the sake of convenience in order to avoid verbatim reproduc tion of the provisions of the earlier Act into the later. When an earlier Act or certain of its provisions are incorporated by reference into a later Act, the provisions so incorporated become part and parcel of the later Act as if they had been 'bodily transposed into it'. The effect of incorporation is admirably stated by Lord Esher, M.R. : 'If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act as if they had had been actually written in it with the pen, or printed in it'.": 4x. The clause (f) of section 269UA is incorporated in section 27(iii)(b) and in view of the above order of Hon'ble Supreme Court it is immaterial whether section 269UA(f) is no more in operation. It's alive and kicking in section 27(iii)(b) of I.T. Act which is there for the purpose of section 22 to 26. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way rent received from M/s. ANZ Grindlays Bank is to be assessed as 'Income from house property'. In view of the above, the decision in case of M/s. Divya Devi 217 ITR 824 is also of no help to assessee, as the decision of the Hon'ble Supreme Court has been passed in case of assessee itself. 4aa.The last contention of assessee was that in view of earlier assessments the 'consistency' is not to be disturbed as no new fact have come to light in subsequent years. This is heavily relied by the assessee. This remained a major factor while deciding the appeal of assessee by my ld. predecessor. The assessee has filed a lot number of case laws in its support to contend that on the issue of consistency as well as on merits it had a strong case. 4ab. The jurisdictional ITAT, Amritsar in case of ITO vs. Goverdhan Dass 20 ITD 681 has held that ' an erroneous view in law could not be allowed to be perpetuated on the ground of consistency. 4ac. Here it is quite clear that in view of the decision of Hon'ble Supreme Court in assessee's own case, holding it to be 'deemed owner' and thus liable to be assessed under the head income from house property has undisputedly established that the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... server to serve notice by means of affixture on the last known address of the assessee. 13. The Ld. counsel for the assessee, Mr. Padam Bahl, CA argued and conceded that there is no dispute to the fact that the notice was actually affixed on 28.03.2006 at the Jammu address of the assessee. He also argued and conceded that service by ordinary course was though affected but only after notice by affixture. He argued probably that notice issued in the ordinary course must have been served on 3rd April, 2006 for which he does not have any record. 14. The Ld. counsel for the assessee, Mr. Padam Bahl, CA argued that there is no question that notice has not been served. The question as to whether service by affixture can be made without adopting ordinary course of service of notice which if made is illegal and he relied upon the following decisions in this regard: i) CIT vs. Avi-Oil India (P) Ltd 323 ITR 242 (P H) ii) DCIT vs. K.G.Singhania 29 DTR 289 iii) CIT vs. Avtar Singh 304 ITR 333 (P H) iv) Arun Lal vs. ACIT 126 TJ (Agra ) (TM) 346 v) Kuber Tobacco Products (P) Ltd vs. DCIT 120 TTJ (Del) (SB) 577 Therefore, notice issued and served u/s 148 is bad in law and reassess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon the decision of various courts of law as under: i) CIT vs. Rampur Timber Turnery Co. Ltd (1981) 129 ITR 58 (All.) ii) Nakodar Bus Service Pvt. Ltd. vs. CIT (1989) 179 ITR 506 (Pun.) iii) CIT vs. Patiala Flour Mills Co. Pvt. Ltd. (1989) 180 ITR 75 (Punj) iv) CIT v. Ganga Prop. Ltd. 199 ITR 94 (Cal.) v) CIT vs. Karampura Collieries Ltd. 201 ITR 498 (Cal.) 26 ITA Nos. 141,142,149, 150 and others vi) United Pr. Elec. Supply Co. Ltd. 204 ITR 794 (Cal.) vii) CIT vs. Benaras Electric Light Power Co. Ltd. 204 ITR 804 (Cal.) 19.1. Such expenses which are covered by the above decisions are annexed at page 48 of the paper book, year-wise and therefore, are allowable against rent received and interest income. 20. He further argued without prejudice to the arguments made hereinabove that the ld. CIT(A) has wrongly mentioned that the A.O. has allowed deduction of Municipal Taxes in the order passed by the AO u/s 154 of the Act, which in fact, has not been allowed in certain years. 21. The Ld. DR, Mr. Tarsem Lal, on the other hand, argued that the ld. counsel for the assessee, Mr. Padam Bahl, CA has conceded and also arise from the record that assessee has responded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us wherein the law is no more res integra that the legal issue on the undisputed facts can be raised before the Tribunal. However, the present challenge reveals a paradoxical stand at the hands appellant leading to contradictory pleadings and that too at a belated stage after participating in the reassessment proceedings and acquiescing through attending and furnishing of all the required details through written submissions vide letter dated 8.11.2006 wherein the assessee has challenged the reassessment proceedings in extenso at para 2.1 of the reassessment order dated 22.12.2006 after which the objections of the assessee has been disposed off on 29.11.2006 in para 1.3 and thereafter subsequently in para 4.1 on 8.12.2006, the assessee has again duly participated in the proceedings which is a sufficient material having bearing on the legal grounds raised that challenge is to the application of the jurisdiction whereas the fundamental challenge to the assumption of jurisdiction is neither addressed nor contested and thus having pleaded the assessment to be treated as unsustainable in law is unwarranted. Only on this account, legal grounds of the assessee with regard to the challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In Anisminic Ltd. case (supra), Lord Reid said: "But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive." In the same case, Lord Pearce said "Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or. things which are conditions precedent to the tribunal having any jurisdiction to embark on an ,enquiry. Or the tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reason can only be that the error of law was considered as vital by the Court. And there is no yardstick to determine the magnitude of the error other than the opinion of the Court." 12.3. The aforesaid principle of law with greatest respect we are bound to follow. 12.4. Even as per records before us, it has been noticed that the assessee has been diligent in pursuing the remedy available through attending to the case proceedings before the AO and it is a settled law that objection regarding jurisdiction be raised at the earlier possible opportunity. Thus, there is no reason for coming forward for the assessee waiting for such long for raising said objection (legal ground) after completion of reassessment. Another issue to be addressed is that challenge is not to the continuation of proceedings by the A.O. whereas the purpose of issuance notice u/s 143(2) of the Act cannot be lost sight and we are supported by the principle of law as noticed in the case of Dhirendra Nath Goari ( In CA No.85 of 1961), Subal Chandra Nath Saha And Others ( In CA No.86 of 1961) vs. Sudhir Chandra Ghosh And Others (1964) 6 SCR 1001 : AIR 1964 SC 1300. In para-7 where the difference between a 'null ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court." 12.5 Having noticed material facts, we consider it appropriate with great respect in accordance with the principle of law that at the most the present kind of grievance is 'merely an error within jurisdiction', which can be determined only by construing the empowering statute, which will give guidance on the subject and in the present case. Further we are supported by the decision of ACIT vs. Hotel Blue Moon decided by the Hon'ble Supreme Court reported in (2010) 321 ITR 362 dated 2nd Feb., 2010. Thus, the purpose is to give opportunity to the assessee for bringing to the knowledge the proceedings being undertaken in accordance with law which too has been done by the A.O. The relevant part of the decision in the case of ACIT Anr. Vs. Hotel Blue Moon reported in (2010) 321 ITR 362 (SC) in para 15 is reproduced as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ekhar. learned counsel for the Department that in view of the expression "So far as may be" in s. 153BC(b), the issue of notice is not mandatory but optional and are to be applied to the extent practicable. In support of that contention, the learned counsel has relied on the observation made by this Court in Dr. Partap Singh's case (supra). In this case, the Court has observed that s. 37(2) provides that "the provisions of the Code relating to searches, shall so far as may be, apply to searches directed under s. 37(2). Reading the two sections together it merely means that the methodology prescribed for carrying out the search provided in s. 165 has to be generally followed. The expression "so far as may be" has always been construed to mean that those provisions may be generally followed to the extent possible. The learned counsel for the respondent has brought to our notice the observations made by this Court in the case of Maganlal v. Jaiswal Industries Ors. [1989] 4 SCC 344, wherein this Court while dealing with the scope and import of the expression "as far as practicable" has stated "without anything more the expression 'as far as possible' will mean that the manner provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under section 148 of the Act. A Writ of Mandamus is issued to the respondents to issue 'no objection certificate' to the petitioner as per the needs and requirements of the Reserve Bank of India. The no objection certificate will be issued within 6 weeks from today. There will be no order as to costs." 15. We may refer to the judgment of Hon'ble Jurisdictional High Court of Punjab Haryana which is binding in nature titled as CIT vs. Ram Narain Bansal reported in ITA No.814 of 2010 dated 13th July, 213 reported in 202 Taxman 213 (placed on record) pertaining to assessment year 2002-03 wherein the question falling consideration is the same as raised before this Bench in the present appeal, which is extracted hereinbelow: "Whether on the facts and circumstances of the case, the Tribunal was right in law in concurring with the finding of CIT (A) in holding the assessment bad in law, made pursuant to the issue of notice u/s 148 without appreciating that no prejudice was caused to the assessee by non-issuance of notice u/s 143(2), particularly, when the assessee was participating in the assessment proceeding without objecting to the assessment proceedings on this account at the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, it shall be deemed that any notice under any provision of the Act, which is required to be served upon him, has been duly served upon him in time in 38 ITA Nos. 141,142,149, 150 and others accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was - a) not served upon him; or b) not served upon him in time; or c) served upon him in an improper manner. Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment." A presumption has been raised under the said provision relating to service of notice upon the assessee in respect of assessment or reassessment proceedings. According to this provision, where an assessee appears in any proceedings or cooperates in any enquiry relating to assessment or reassessment proceedings, it shall be presumed that the assessee has been validly served and it shall not be open to the assessee to object that the notice was not served upon him or was not served in time or was served upon him in an improper manner. However, an except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to address the controversy at the hands qua the meaning of the word "Issue" and "Service" of notice wherein identical question fell for consideration before the jurisdictional Punjab Haryana High Court in the case of V.R.A. Cotton Mills (P) Ltd. vs. Union of India And Ors (2012) 250 CTR (P H) 188 (70 DTR (P H) 439 wherein the Hon'ble High Court dismissed the writ petition filed noticing the provisions of section 282(1) of the Act and especially relying upon the decision in the case of CIT vs. AVI-Oil India P. Ltd. (2010) 323 ITR 242 (P H) and held that certain principles of law for which the relevant part is extracted hereinbelow: "The grievance of the petitioner is that such notice was not served on the assessee till 30.09.2010 i.e. the last date of limitation for the initiation of proceedings for the Assessment Year 2009-10. The relevant provisions of the Act i.e. Section 143(2) of the Act read as under: "143(2) Where a return has been furnished under Section 139, or in response to a notice under sub-section (1) of Section 142, the Assessing Officer shall - (ii) notwithstanding anything contained in clause (i), if he considers it necessary or expedient to ensure that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saving the validity of notices issued under Section 34(1) of the Act. When that Section used a word interpreted by courts in the context of such notices, it would be reasonable to assume that the expression was designedly used in the same sense. That apart, the expressions "issued" and "served" are used as inter-changeable terms both in dictionaries and in other statutes. The dictionary meaning of the word "issue" is "the act of sending out, put into circulation, deliver with authority or delivery". Section 27 of the General Clauses Act (Act X of 1897) reads thus: "27. Meaning of service by post - Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre- paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." It would be see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll for the records of any proceedings under the Act in which an order has been passed by any authority subordinate to him and pass such order thereon as he thinks fit. The proviso, however, stated that the Commissioner shall not revise any order under that sub- section "if the order (sought to be revised) has been made more than one year previously". Construing this provision the High Court in Muthia Chettiar's case held that the power to call for the records and pass the order will cease with the lapse of one year from the date of the order by the subordinate authority and the ratio of date of the knowledge of the order applicable to an aggrieved party is not applicable for the purpose of exercising suo motu power. Similarly in another decision reported in Viswanathan Chettiar v. Commr. of Income Tax, Madras, 25 ITR 79 Mad, construing the time limit for completion of an assessment under Section 34(2) of the Income Tax Act, 1922, which provided that it shall be made "within four years from the end of the year in which the income, profit and gains were first assessable", it was held that the time limit of four years for exercise of the power should be calculated with reference to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was to protect the interest of the person adversely affected, by providing a remedy against the order or decision any period of limitation prescribed with reference to invoking such remedy shall be read as commencing from the date of communication of the order. But if it is a limitation for a competent authority, to make an order the date of exercise of that power and in the case of exercise of suo motu power over the subordinate authorities' orders, the date, on which such power was exercised by making an order are the relevant dates for determining the limitation. The ratio of this distinction may also be founded on the principle that the Government is bound by the proceedings of its officers but persons affected are not concluded by the decision." The said principle of the issue of a notice or communication has also come up for consideration before the Hon'ble Supreme Court in the context of the provisions of Section 4 of the Contract Act, 1872. It has been held that the moment the proposer puts his proposal in the course of transmission, it is complete as against the acceptor i.e. addressee. Therefore, the moment the notice is signed and put in the course of transmission b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to him before such date. An officer against whom action is sought to be taken, thus, may go away from the address given by him for service of such orders or may deliberately give a wrong address and thus prevent or delay its receipt and be able to defeat its service on him. Such a meaning of the word "communication" ought not to be given unless the provision in question expressly so provides. Actually knowledge by him of an order where it is one of dismissal, may, perhaps, become necessary because of the consequences which the decision in The State of Punjab v. Amar Singh Harika AIR 1966 SC 1313 contemplates. But such consequences would not occur in the case of an officer who has proceeded on leave and against whom an order of suspension is passed because in his case there is no question of his doing any act or passing any order and such act or order being challenged as invalid." Learned counsel for the petitioner has also relied upon the judgment of Hon'ble Supreme Court in Assistant Commissioner of Income Tax and another Vs. Hotel Blue Moon (2010) 3 SCC 259. But the said judgment does not provide any help to the argument raised. In fact, in para 7 of the said judgment, it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer, if otherwise reasonable opportunity of being heard has been given. (ii) Issue of notice as prescribed in the Rules constitutes a part of reasonable opportunity of being heard. (iii) If prejudice has been caused by non-issue or invalid service of notice the proceeding would be vitiated. But irregular service of notice would not render the proceedings invalid; more so, if the assessee by his conduct has rendered service impracticable or impossible. (iv) In a given case when the principles of natural justice are stated to have been violated it is open to the Appellate Authority in appropriate cases to set aside the order and require the assessing officer to decide the case denovo." In view of the said judgment, the date of receipt of notice by the addressee is not relevant to determine, as to whether the notice has been issued within the prescribed period of limitation. The expression serve means the date of issue of notice. The date of receipt of notice cannot be left to be undetermined dependent upon the will of the addressee. Therefore, to bring certainly and to avoid attempts of the addressee to evade the process of receipt of notice, the purpose of the statute wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vident that a lease which provides for the extension of the term thereof by a further term it shall be deemed to be a lease for a term of not less than twelve years, if the aggregate of the period for which the lease is granted and period of extension counted together makes it more than twelve years. In the present case, we are proceeding on our assumption that explanation to Section 269 UA(f)(i) would be attracted only when lease provides for extension of term and in view thereof, we do not consider it expedient to examine the judgment relied on by Mr. Salve. In the case in hand, the lease was for a period of nine years and the question, therefore, is as to whether the same was extendable for a further period of nine years so as to make it for not less than twelve years. To answer this one is required to refer to the lease deed and Clauses 1 and 12 thereof which are relevant for the purpose, same read as follows: "That the Lessors of the First Part have agreed to lease out to the Lessee of the Second Part the demised premises as aforesaid which are being used for commercial purposes at present namely on the lower ground floor/basement, ground floor/upper ground floor, first floo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity has to be seen to decipher the terms and conditions of lease. Here in the present case, Clause 1 in no uncertain term provides for extension of period of lease for a further period of 9 nine years and clause 12 thereof provides for renewal on fulfillment of certain terms and conditions. Therefore, when the document is constructed as a whole, it is apparent that it provides for the extension of the term. If that is taken into account the lease is for a period of not less than twelve years. Once it is held so the explanation to Section 269UA(f)(i) is clearly attracted. We are of the opinion that the High Court is right in observing that quot;on a conjoint reading of paras 1 and 12 of the lease deed, the lessor intended the lease to last for 18 years and further the lessor could not have refused to renew/extend the lease after first term if the lessee complied with the conditions." 28. On the change of opinion, the Hon'ble Punjab Haryana High Court in the case of Tilak Raj Bedi v. JCIT reported in (2009) 319 ITR 385, wherein the question falling for consideration was regarding reopening of the assessment on the basis of change of opinion and having noticed pleadings of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Distt. VI, Calcutta and others v. Lakhmani Mewal Das 7. [1981] 132 ITR 707 (Del) Asoke Kumar Sen v. Income Tax Officer, Special Circle-V, New Delhi and another 8. 255 ITR 220 (P H) Vipan Khanna v. Commissioner of Income Tax and others 9. [2006] 287 ITR 337 (Del) Smt. Kamlesh Sharma v. B.L. Meena, Income Tax Officer and others 6. We are unable to accept the submission. After amendment of Section 147 w.e.f. 1.4.1989, reassessment can be initiated even if there is disclosure in the return if without considering the particulars of the return, processing is done under Section 143(1) or assessment is made under Section 143(3). No doubt, mere change of opinion by itself is not a ground for reassessment as held in the judgments relied upon on behalf of the assessee but if there are reasons to believe that tax has escaped, reassessment is permissible. Reasons can be even on the basis of particulars of the return without any new material. Even if proceedings under Section 143(2) are not taken, reassessment proceedings can be taken. 7. In the present case, the CIT (A) set aside the proceedingsby wrongly holding that reassessment could not be initiated on the basisof material alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequence of the scheme of the Act. However, we are unable to persuade as to the question that the charge is on a source or head of income and the assessee has accepted the charge of a source under the head 'Income from house property, then in the facts and circumstances, to dissect the said charge of a source under the head of income from house property qua other income under the residuary head of income i.e. Income from other sources none material of whatsoever kind has been furnished on the record to reveal the usage of income from house property qua the income from other source i.e. Residuary Head. This aspect has not been examined or discussed by the A.O. during the assessment proceedings. Therefore, for the limited extent, to allow claim of deduction under the head 'Income from house property' or 'Income from other source' the matter is set aside to the file of the Assessing Officer, who will decide the issue whether the said expenditure is allowable under the head 'Income from house property' in view of the decision of Hon'ble Supreme Court as referred to in para 4-u of CIT(A)'s order and accepted by the assessee or income from other sources, as argued by Ld. counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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