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2016 (7) TMI 186 - ITAT DELHI

2016 (7) TMI 186 - ITAT DELHI - TMI - Reopening of assessment - notice sent on incorrect address - Held that:- It is undisputed fact that the notice u/s. 148 of the Act dated 22.3.2011 which is foundation stone of reassessment proceedings u/s. 147, was issued at an incorrect address due to mistake attributable to the AO and could not be served upon the assessee within the statutorily prescribed time of 6 years and even thereafter, before the order of reassessment was passed. Therefore the reasse .....

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case, the Ld. CIT(A) has erred in treating the reassessment proceedings u/s. 147 of the 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 a .....

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naccounted 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 .....

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on raised were duly replied vide notice u/s. 142(1) of the Act with letter dated 8.2.2013. Thereafter, the AO observed that opportunities were allowed to the assessee to explain its contention with supporting evidence, but it has failed in every respect to discharge its onus to prove that the amount of of ₹ 38,01,030/- credited in the books of account/ bank accounts of the assessee are not its unaccounted money. Therefore, a sum of ₹ 38,01,030/- was added back in the income of the as .....

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ion for adjournment, but Ld. Counsel of the assessee raised objection that the issue involved in the present appeal is squarely covered by the various decisions of the ITAT and the Hon ble High Court, therefore, the matter may be heard. Keeping in view of the facts and circumstances of the present case and the issue involved in the present appeal as well as the order passed by the revenue authority, in the interest of justice the case was adjourned for 17.6.2016 being part heard. Both the partie .....

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iled 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 Assesse .....

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at 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 shifted to KD-178 at Pitampura. The appellant had filed subsequent returns of in .....

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n duly verified by me. Undisputedly, the Ld. AO was also informed of this change, vide letter dated 10.8.2009, which was taken into cognizance by the AO himself, who had issued notice in respect of the proceedings for the assessment year 2005-06 to the new address. In fact, in the impugned order itself, the Ld. AO mentioned of his letter dated 19.3.2013, in which it was conceded that even though the appellant had intimated the new address to the Department but inadvertently the notice u/s 148 wa .....

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tice u/s 148 did not return back to the Ld. AO. However, at the same time, there was no response from the appellant to the notice u/s 148 and the appellant responded to the AO only on 6.2.2013. Therefore, the only logical presumption 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 22.3.2 .....

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e 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 .....

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iled, as the electricity company was raising electricity bill after vacating the premises on estimated basis. Moreover, in the current year, the new Directors of the appellant company (from the family of late Munna Babu Goal) have also shown the new address at 24A, Alipur Road Civil Lines, New Delhi and there is no evidence at premises at 25, Harsh Vihar, Pitampura, Delhi was used as a business premises of the appellant or by its Directors, as on the date of issue of notice u/s 148 dated 22.3.20 .....

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on 22.3.2012, having expired in January, 2011. The Ld. AO has made some vague statements such as 'the issue arises due to carelessness of concerned persons of your side (letter dated 8.2.2013) and 'it is not a matter of department whether the person of the assessee has given it or not to the concerned authority of the assessee company.' However, since the premise did not belong to the appellant company and the Director of the company, who was the owner of the premise had deceased, by .....

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his 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 .....

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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 Fur .....

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to some other address which might have been given by the Investigation Wing. The notice was issued in March/ 2008 and the assessment was completed in December/ 2008 and/ in the assessment order/ the Assessing Officer himself had given a different address other than what was given in the notice under section 148 of the Act. Therefore the notice was issued at the incorrect address/ which was not valid issue of notice." 7.2.3 The Hon'ble ITAT relied upon the decision of the Gujarat High C .....

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he present case/ the impugned notices have been signed on March 31/ 2010/ whereas the same were sent to the speed post centre for booking only on April 7/ 2010. Considering the definition of the word 'issue', it is apparent that merely signing the notices on March 31, 2010 cannot be equated with issuance of notice as contemplated under section 149 of the Act. The date of issue would be the date on which the same were handed over for service to the proper officer/ which in the facts of th .....

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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 .....

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