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TMI Blog2016 (10) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner prays for quashing of the notice and for a writ of prohibition restraining the respondents from taking any action on the basis of the impugned notice. Contention of the petitioner: (2) Appearing for the petitioner Mr. Poddar, Learned Sr. Advocate submitted that from a perusal of the impugned notice it appears that the same records both the erstwhile and current addresses of the petitioner company being 1/1A Biplabi Anukul Chandra Street, Electronic Building, 5th Floor, Room No. 5G, Kolkata-700072 and 11/1, Sunny Park, Flat - E, Kolkata-700019 respectively. However, the notice was sent by speed post only to the earlier office address of the petitioner and not to the current address and hence the petitioner did not receive the notice. In this connection the petitioner relied on a report of the Inspector attached to the office of the ITO, Ward - 9(3), Kolkata. He then referred to a notice dated 29 October, 2014 which referred to the earlier notice dated 31 March, 2014 which is under challenge in the present petition and called upon the petitioner to furnish the return under Sec. 148 of the IT Act within 30 days failing which reassessment would be done ex parte as per mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Form No. 49A prescribed under Rule 114 of the Income Tax Rules, 1962 read with Sec. 139A(5)(d) of the IT Act, 1961. Upon such intimation the Department issued a new PAN card to the petitioner on 3 July, 2009. The said PAN card was sent to the petitioner under cover of a letter to the current address of the petitioner. (10) Learned Counsel then submitted that the fact that the address of the new registered office of the petitioner was fully known to the Department would also be evident from the following facts:- (i) Copy of IT Acknowledgement evidencing filing of the Income Tax Return by the Petitioner Assessee Company for the assessment year 2009-10 on 30 September, 2009 showing its said new address. (ii) Copy of IT Acknowledgement evidencing filing of the Income Tax Return by the Petitioner Assessee Company for the assessment year 2010-11 on 30 September, 2010 showing its said new address. (iii) Copy of the intimation under Section 143(1) of the said Act in respect of the assessment year 2009-10 issued at the said new address by the Revenue Respondents on 28th December, 2010. (iv) Copy of IT Acknowledgement evidencing filing of the Income Tax Return by the Petitioner Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the prescribed manner and setting forth such other particulars as may be prescribed. Service of Sec. 148 notice (corresponding to Sec. 34 of the IT Act, 1922) is a condition precedent for initiating any proceedings for assessment/re-assessment/re-computation under Sec. 147 of the IT Act. In this connection learned Counsel relied on the Apex Court decisions in the cases of CIT-vs.-Thayaballi Mulla Jeevaji Kapasi, (1967) 66 ITR 147 (SC), and CIT-vs.-Kurban Hussain Ibrahimji Mithiborwala, (1971) 82 ITR 821. Mr. Poddar submitted that if notice under Sec. 146 is not validly issued and/or served upon an assessee, the ITO would have no jurisdiction to proceed with the matter and the entire proceedings taken by him pursuant to such invalid notice would be void for want of jurisdiction. In this connection he also relied on two decisions of this court in the cases of Rameshwar Sirkar-vs.- Income Tax Officer, (1973) 88 ITR 374 (Cal) and Gajendra Kumar Banthia-vs.-Union of India, (1996) 222 ITR 632 (Cal). (12) Learned Counsel then referred to Sec. 282 of the IT Act which provides for the mode of service of a notice or summon or requisition or order or any other commutation under this Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition, pursuant to request made by the petitioner by letter dated 12/14 April, 2015, copy of the impugned notice was supplied to the petitioner. Hence, the petitioner's grievance regarding non-service of the impugned notice has already been redressed. (16) Learned Counsel then submitted that the limitation period prescribed under Sec. 149 of the IT Act is for 'issuance of notice' and not 'service of notice' under Sec. 149(1)(b) of the IT Act. The Department had time till 31 March, 2015 to issue notice under Sec. 148. The notice was issued much prior thereto and was despatched through usual machinery. Whether or not the notice was received by the petitioner is a disputed question of fact which the writ Court will not go into. (17) Learned Counsel submitted that during the pendency of the writ petition, the petitioner requested for the reasons recorded by the Assessing Officer for issuance of the impugned notice and the same were furnished to the petitioner by letter dated 23 February, 2015. It is significant that the petitioner filed objection to the said recorded reasons by its letter dated 5 March, 2015, but in the said objection there is no whisper o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Firstly, whether or not the notice under Sec. 148 of the Income Tax Act was duly served on the petitioner? Secondly, if the answer to the first question is in the negative, what is the effect of such non-service of notice on the proceedings or action taken in pursuance of such notice? (21) The specific case of the petitioner is that its registered office was shifted from Biplabi Anukul Chandra Street address to Sunny Park address with effect from 3 December, 2008. The petitioner has disclosed Form 18 filed under Sec. 146 of the Companies Act, 1956 to corroborate the aforesaid fact. This fact is also not denied by the respondents even in course of making submission. (22) The petitioner has also disclosed copies of IT Return acknowledgement forms for the assessment years 2009-10, 2010-11, 2011-12, 2012-13 and 2013-14 issued by the Department which mention the Sunny Park address of the petitioner. The petitioner has also brought on record copies of notices issued by the Department to the petitioner under Sec. 143(1) of the IT Act pertaining to various assessment years starting from 2009-10, all of which were sent to the Sunny Park address of the petitioner. Hence, it is beyond any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to Sunny Park and had the current Sunny Park address in its records. (24) In Gajendra Kumar Banthia (supra), a Division Bench of this court held that in terms of Sec. 282 of the IT Act, a notice has to be served in the manner laid down in the Code of Civil Procedure which provides that service of summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as appointed in this behalf and sealed with the seal of the Court. Delivering or tendering the same is the sine qua non of such service. In Lakshmi Narayan Prasad Bhagat-vs.-State of West Bengal (supra), a learned Judge of this court held that under the provisions of the Bengal Agricultural Act, 1944 and the Rules framed thereunder, even though an assessee has not filed his return of the agricultural income pursuant to a general notice, it is the obligation of the appropriate authorities to serve a notice under Sec. 24(1) or (2) of the Act or make an attempt to have the notice served on the assessee duly and personally before the notice is served by affixation. Hence, when there was no due and proper service of notices at any stage of the proceeding, be it at the initial stage or at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that notice under Sec. 148 of the IT Act was not duly served on the petitioner. (26) Coming to the second question, I have no hesitation in holding that due and proper service of notice under Sec. 148 of the IT Act within the limitation period prescribed under Sec. 149 of the Act on the assessee is a condition precedent for initiation of re-assessment proceedings. This proposition of law has been long settled by a catena of cases. In CIT-vs.-Thayaballi Mulla Jeevaji Kapasi (supra), the Hon'ble Supreme Court held that service of notice under Sec. 34 (1)(a) of the IT Act, 1922 (corresponding to Sec. 148 of the IT Act, 1961) within the period of limitation is a condition precedent to the exercise of jurisdiction. In CIT-vs.-Kurban Hussain Ibrahimji Mithiborwala (supra), the Hon'ble Supreme Court held that the income tax officer's jurisdiction to reopen an assessment depends upon the issuance of a valid notice to the assessee. If the notice issued is invalid for any reason, the entire proceedings taken by him would become void for want of jurisdiction. Similarly in Rameshwar Sirkar-vs.-Income Tax Officer (supra), Sabyasachi Mukharji, J. (as his Lordship then was) observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin his jurisdiction in issuing the notice. On the request of the petitioner the assessing officer also furnished to the petitioner the reasons for issuing such notice. It is not for this court to adjudge whether such reasons are good or bad so long as they are not perverse. The notice is really in the nature of a show-cause notice and the Writ Court normally does not interfere with such a notice. It is open to the noticee to respond to such notice and urge as to why the action proposed in such notice should not be taken. In the present case, the petitioner is at liberty to give its reply to the notice under Sec. 148 and also to participate in the reassessment proceedings if its Return for the relevant year is reopened. It has full opportunity to protect its interest and to contend as to why there should be no reassessment of its income for the relevant year. Needless to say, the assessing officer will grant the petitioner full opportunity of hearing in the matter. (31) Further, if the notice impugned is quashed, that would put an end to the possibility of any reassessment proceeding. Any fresh notice issued under Sec. 148 for the assessment year 2007-08 would be barred by limita ..... X X X X Extracts X X X X X X X X Extracts X X X X
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