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TMI Blog2015 (10) TMI 1513X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. CIT(A) quashed the re-assessment proceedings and consequently held that grounds on merits as infructuous. The Revenue is against the order of the ld. CIT(A) in quashing the assessment and the assessee is in the C.O. for the not deciding the issues on merits. 3.1 Brief facts of the case are that Investigation Wing of the Department, New Delhi got information that bogus entry operations were being carried out at large scale in Delhi and some of which were attributable at Jaipur. The operators and beneficiaries thereof were identified in which assessee's name was found to have received a sum of Rs. 5,01,000/- vie cheque no. 4490098 dated 13-12-2002 from one Shri Narendra through the bank account No. 24558 with SBBJ, New Rohtak Road, New Delhi. This sum was credited to the assessee's saving bank account no. 19517 with Bank of Baroda, Station Road, Jaipur on 18-12-2002. Based on this information from ADIT (Inv.), Jaipur, ld. AO recorded reasons in this behalf; notice u/s 148 was issued on 22-03-2010 with prior approval and was sent to the assessee through speed post Receipt No. ER 017540747 IN. The assessee did not file any return of income in compliance thereto, thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 61, were initiated after recording valid reasons. The notice u/s 148 of the Act sent through speed post has also been served on the assessee as ITO, Ward- 3 (2), Jaipur vs. Ms. Shubhashri Panicker. 5 the same was received back. As such, I find no merit in the arguments of the assessee, it was held in the case of R.K. Upadhyaya V Shanabha P Patel (166 ITR 163 (SC); CIT vs. Sheo Kumar Debi (157 ITR 13 (Pat.) and Jai Hanuman Trading Co. (P) Ltd. vs. CIT 110 ITR 36 (Punj. & Hary.), that where the notice was issued within time but was served on the assessee after the expiry of the time limit, it could not be held to be invalid. The Hon'ble Supreme Court in the case of CIT vs. Major Tikka Kushwant Singh (212 ITR 650) held that issuance of notice within period of limitation gives jurisdiction to Assessing Officer to proceed to make reassessment. The Hon'ble Delhi High Court in the case of CIT vs. Yamu Industries Ltd. 167 Taxman 67 held that the notice sent by registered post to the correct address of the assessee had not been received back 'unserved' within a period of thirty days of its issuance, there was presumption under law that the said notice had been duly served up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost on the address Ms. Subhashri Panicker; E-58, .....Kailash Marg, Bani Park, Jaipur vide ER 017540747 dated 22- 03-2010 was issued and served upon the assessee. The correct address of the assessee is as under:- Ms. Subhashri Panicker F-58, B Kalidas Marg, Bani Park, Jaipur B. The alleged notice sent by ld. Assessing Officer was not a valid notice since the address on the receipt of speed post was not of assessee for the following reasons. (i) The correct prefix to Plot No. 58 is "F" whereas in notice prefix was used as "E". (ii) The suffix to Plot No. 58 is "B" which is not written in the notice. (iii) The correct name of Road is Kaildas Marg instead of Kailash Marg as written on the notice. The PAN allotment letter clearly shows the correct address in the records of department and available to ld. Assessing Officer. The address written on the speed post was completely deformed and mismash. The ld. Assessing Officer while dealing with non-issue of service of notice has stated as under:- ......In the case cited by ld AO above, it is clearly stated that notice be sent by Registered Post to the correct address. In the case of assessee notice sent by ld. Assessing Officer was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as:- (a) The case was opened for Rs. 501000 dated 18-12- 2002 and not for amount of Rs. 50,00,000/-. (b) In statement providing reasons for reopening the nature of entry was not provided to the assessee." Reliance is placed by the ld. AR of the assessee as under:- (1) Ashok B Bafna vs. DCIT (2012) 27 Taxmann.Com 126 (Mum) (2) ITO vs. Om Exim (P) Ltd. 40 Taxmann.com 133 (Delhi) (3) CIT vs. Dr. Ajay Prakash 42 Taxmann. Com 387 (All.) 3.5 The ld. DR on the other hand contends that notices issued u/s 148 and 142(1) were served on the assessee. In response thereto, the ld. AR of the assessee duly appeared from time to time and sought adjournments without raising any grievance about non-service of 148 notice. It is only at the fag end of the assessment by way of an afterthought that story about non-services of the notices u/s 148 was concocted to defeat the statutory process of the assessment. The notice u/s 148 was issued in the name of Ms. Shubashri Paniker, F-58, Kailash Marg, Bani Park, Jaipur on 22-03-2010 and sent for service through speed post on 22-03- 2010. This speed post was not received back from the postal authorities suggesting any non service. Again the notice u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valid notice U/s 143(2)(ii) of the Act. In another case, the Hon'ble Punjab & Haryana High Court in the case of CIT Vs. Jasbir Singh NRI through Shri Jarnail Singh, POA in ITA No. 253 of 2012 (O&M) order dated 21/2/2012 has held that notice issue on the last known address is valid service. It is further held that it was incumbent on the Tribunal not to quash the whole proceedings as it amounted to leaving the assessee go scot free, though he is liable to pay tax on the capital gains. The assessee received compensation on compulsory acquisition of land, therefore, he cannot deny his liability to pay long term capital gain tax. Merely because there was some error in service of notices on the assessee, statutory liability of the assessee to pay tax on capital gain was not over. Because of procedural lapse, the assessee should not be a gainer and that too by default to escape his liability. Squally, order of the Tribunal also lacks merit. The case law cited by the learned DR i.e. V.R.A. Cotton Mills P. Ltd. Vs. Union of India (supra) is squarely application on the assessee's case wherein it has been held that prescribed time limit for notice, the expression "serve" and "issue" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sertions are patently wrong, self contradictory and contrary to overall facts on the record. Ld. CIT(A) ignoring these vital facts was not correct in quashing the assessment. 3.7 I have heard the rival contentions and perused the materials available on record, as the facts emerge the first notice was transmitted by ld. AO through speed post which is not been disputed by the assessee after inspection. It is thus clear that the notice was under transmission by handing over to the postal authority who acted as an agent of the recipient. The speed post notice has been returned mentioning the address as wrong or undelivered which is a standard practice of the postal Department. Assessee's AR in the initial hearings never indicated that 148 notice was not properly served. The lame objection is taken at the fag end of assessment, which clearly smack of a design. Thus in the entirety of facts and circumstances of the case and case laws of CIT vs. Yamu Industries Ltd. (supra) and ITAT judgement in the case of ITO vs. Shri Sarabh (Saurabh) Charan (supra), it is held that the ld. CIT(A) glossed over the relevant facts and committed an error in quashing the reassessment proceedings. Conse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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