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TMI Blog2016 (7) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... the return declaring an income of Rs. 98,140/- on 30.6.2005. In this case, information has been received from the office of the DIT(Inv.), New Delhi about the companies who were involved in taking/giving accommodation entries for unaccounted money. It leads to the fact that the assessee company was one of the company, who has taken accommodation entry from parties for its own unaccounted money. Considering the above information, case of the assessee was reopened u/s. 147/148 of the Income Tax Act, 1961 (hereinafter referred the Act), after recording reasons, necessary approval received from Addl. CIT(A), Range-12, New Delhi. Notice u/s. 148 of the Act dated 22.3.2012 was issued and served by the Speed Post at the old address of the assessee company i.e. 25, Harsh Vihar, Pitampura, Delhi-34. In response to the notice, neither anyone attended nor any written submissions were field, therefore, notice u/s. 142(1) of the Act dated 30.1.2013 was issued at the new address of the assessee company, calling details of income and expenditures relevant to AY 2005-06. Then Ld. AR of the assessee attended the proceedings and filed the reply dated 6.2.2013 by way objecting the proceedings u/s. 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exparte qua DR, after hearing the Ld. Counsel of the assessee and perusing the records. 6. During the course of hearing Ld. Counsel of the assessee relied upon the order of the Ld. CIT(A) and stated that the same may be upheld. 7. I have heard Ld. Counsel of the Assessee and perused the records especially the orders of the Revenue authorities. I find that Ld. CIT(A) has elaborately discussed the issue in dispute vide para no. 6 to para 9 at pages 8 to 14. The relevant paras are reproduced as under:- "6. I have carefully considered the facts of' the case in the light of the submissions made by the appellant and the observation made by the AO in the impugned order. Accordingly, my decision on various grounds is as under: 6.2 I find that there is no dispute that in the case of appellant, in terms of the provisions of Section 151, the notice u/s 148 was to be issued on or before 31.3.2012. In the case of the appellant, the said notice was issued on 22.3.2012, however, it was issued at old address of the appellant form which the appellant had filed its original return of income. However, subsequently, the appellant had shifted from that premises w.e.f. 28.6.2005 itself and shi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n precedent. I also find that the appellant had taken all necessary steps for the purpose of making due diligence in the matter by informing ROC, AO and DIT(System). Therefore, the mistake is attributable to the AO only, who was casual in issuing the notice u/s 148 at the old address, without verifying own records for the subsequent years and the specific information dated 10.8.2009, given by the appellant, whereby the appellant had informed change of address to the AO. 6.4 The Ld. AO, having admitted the above mistake, has still gone ahead with the impugned proceeding by holding that the service at the old address at 25, Harsh Vihar, Pitampura, Delhi, which was owned by one of the Directors of the appellant company was a valid service. The appellant, on the other hand, with the support of relevant documents claimed that the said premises at 25, Harsh Vihar, Pitampura, Delhi, which was in the name of the Director (in the current year) Mr. Munna Babu Goel, was vacated on 11.6.2011 after his death on 15.1.2011. Necessary evidences in support of the same were furnished, which have been verified. Further, a letter to NDPL for not raising electricity bill was also filed, as the electr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment proceedings were null and void. In holding so the Hon'ble High Court had held as under: "The first notice issued on January 29J 2004J by speedpost was said to have been served at the old address at East of Kailash. There was no proof of service on record. Even otherwise, this was not valid service because the assessee had already filed its return on November 28, 2003 and in this return the address shown was Panchsheel Park. Thus, the record of the Department already contained the new address of the assessee. Before issuing notice under section 148J it was expected of the Assessing Officer to have checked up if there was any change of address, because valid service of a notice of reopening the assessment is a jurisdictional matter and this is a condition precedent for a valid reassessment. The notice served by affixture was also not valid service because it was done at the old address, which was not the last known address, as the new address had already been intimated to the Department in the return of income filed for the assessment year 2003- 04." 7.2.2 Further, the Honble ITAT Delhi in the case of ITO v. On Exim P. Ltd. [2013] 026 ITR (Trib) 0697 allowed the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be April 7, 2010 and not March 31, 2010, as contended on behalf of the Revenue. In the circumstances, the impugned notices under section 148 in relation to the assessment year 2003-04, having been issued on April 7, 2010 which is clearly beyond the period of six years from the end of the relevant assessment year, are clearly barred by limitation and as such, cannot be sustained. (emphasis supplied) 8. I also hold that the defect in notice u/s 148 is not curable in terms of the provisions of Section 292BB either, as the appellant had right through out raised objection on the validity of proceedings on the ground of non-service of the said notice u/s 148 dated 22.3.2012 and not participated in the re-assessment proceedings. 9. Keeping in view the above and in the light of the decision of the Hon'ble Delhi High Court in the case of ClT vs. Eshaan Holding (P.) Ltd (Supra), the decision of Allahabad High Court in the case of Dr. Ajay Prakesh (Supra) and of Hon'ble ITAT Delhi in the case of OM Exim Pvt. Ltd. (Supra), the impugned assessment proceeding resulting from the issue of a defective notice u/s 148 dated 22.3.2012, which was addressed at an address, which is not the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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