TMI Blog2016 (7) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... Act as bad in law. 2. On the facts and circumstances of the case, the Ld. CIT(A) has erred in deleting the addition of ₹ 38,01,030/- without deciding the matter on merits. 3. On the facts and circumstances of the case, the Ld. CIT(A) has erred in treating the notice issued u/s. 148 of the I.T. Act as defective. 4. The appellant craves to add, alter, amend, modify, add or forego any ground of appeal at any time before or during the hearing of this appeal. 2. The brief facts of the case are that the assessee has filed the return declaring an income of ₹ 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase was adjourned for 20.6.2016, as the case was partly heard, Ld. Counsel of the assessee again objected for adjournment. The DR has also taken note of the next date of hearing i.e. 20.6.2016, but when the case came up for hearing before the Bench on 20.6.2016 no one appeared on behalf of the Department till the conclusion of the Bench, nor filed any Application for adjournment. In view of the above facts and circumstances, I am of the considered opinion that no useful purpose would be served to adjourn the case again and again, hence, the Revenue s appeal is decided 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 appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n could be drawn is that the appellant was informed of the impugned proceeding only by way of notice u/s 142(1) dated 30.1.2013, which was issued at the new and valid address of the appellant. Under the circumstances, it is evident that the notice u/s 148 dated 22.3.2012, was not served upon the appellant within the prescribed time limit u/s 151. I find that during the reassessment proceedings also, notice u/s 148 was not served upon the appellant before passing of the impugned order. It is a settled law that service of notice u/s 148 before passing of assessment order is a condition 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to the AD and could not be served upon the appellant within the statutorily prescribed time of 6 years and even thereafter, before the order of re-assessment was passed. In view of this the reassessment proceeding are held as bad in law. 7.2 The Delhi High Court, in the case of elT vs. Eshaan Holding (P.) Ltd. [2012) 344 ITR 0541, on similar facts, where the notice u/s 148 was issued at the old address of the assessee, dismissing the appeal, held that for the assessment year 2003-04, there was no valid service of notice under section 148 of the Income-tax Act, 1961, and hence the reassessment 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 As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date on which the same were handed over for service to the proper officer/ which in the facts of the present case would be the date on which the said notices were actually handed over to the post office for the purpose of booking for the purpose of effecting service on the petitioners. Till the point of time the envelopes are properly stamped with adequate value of postal stamps, it cannot be stated that the process of issue is complete. In the facts of the present case, the impugned notices having been sent for booking to the speed post centre only on April 7, 2010, the date of issue of the said notices would 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 ob ..... X X X X Extracts X X X X X X X X Extracts X X X X
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