TMI Blog2018 (9) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... by limitation by 132 days. The assessee filed a writ petition before the Hon ble Orissa High Court to condone the delay in filing the appeal before the Tribunal. Accordingly, the Hon ble High Court by disposing the writ petition on 11.5.2018 directed the assessee to file appeal within 15 days from the date of issue of the order. As per the said direction of Hon ble High Court, the assessee has filed the appeal before the Tribunal on 25.5.2018, which is within the time limit. We, therefore, condone the delay of 132 days in filing the appeal before the Tribunal and admit the appeal for hearing. 3. The assessee has raised the following grounds of appeal: 1. For that, the assessment order passed by the Ld. A.O. is illegal, arbitrary and without jurisdiction. 2. For that, the Ld. AO is erred in making of assessment ! without issuance of notice U/s.148 of the I.T. Act in clear/ violation of natural justice leads to quashing order of assessment. 3. For that, the Ld. AO is erred in not following due procedure of law for making an assessment U/s.147 of the IT Act in clear violation of Sec-148(l), Sec-148 need with Sec.282(l) and Sec- 153(2] as well as order-Ill Rule-6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as mentioned in my letter dated 28.08.2017 addressed to the Ld AO Vide para-4, the assessment proceedings are illegal and void as held by Hon'ble Supreme Court in the case ofY. Narayan Chetty V.ITO (1995) 35 ITR 388 (SC) CIT v. Thayaballi Mulla Jevaji Kaposi (1967) 66 ITR 147 (SC) CIT Vs. Kurban Hussain Ibrahim Ji Mithiberwala (1971) 82 ITR 821 (SC) and CITvs Major Tikka Khushwant Singh (1995) 212 ITR 650 (Sc). But the Ld AO did not mention anything in this regard. Hence, the 147 proceedings is void. 7. The CIT(A) confirmed the action of the Assessing Officer by observing as under: I have carefully examined the assessment order, remand report and submissions of the appellant. I find that the appellant had sold the property in Kota, but, had not filed the return of income declaring capital gain. The assessing officer came to know the instant the sale of property by the information received from Sub Registrar, Kota. The assessing officer issued the notice u/s. 148 of I.T Act, 1961, on the last known address of the appellant, being 10, Binayak Complex, Dadabai Extention, Kota. This notice was returned by postal department with comment 'left'. Thereafter, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on dated 25/02/2016, he has passionately prayed the Assessing Officer to transfer his case to the Income Tax Officer, Ward 1(1), Bhubaneswar which was received by the Assessing Officer on 29/02/2016. But for the reasons best known, the Assessing Officer, neither transferred the case to the ITO Ward 1(1), Bhubaneswar nor made any communication thereon to the Appellant, in compliance with the principles of natural justice. 4. That on 27/01/2016 notice u/s.142 (1) of the I.T. Act, 1961 was issued to the Appellant. But without examining service of notice issued U/s 148 of the I.T. Act and without taking any action on the application submitted by the Appellant for transfer of the records to Bhubaneswar, the Assessing Officer passed the order U/s.147/144 of the I.T.Act, on 29/03/2016 for AY 2008-2009 ex parte computing the assessed income of ₹ 8, 34, 810/- thereby demanding tax of ₹ 4, 40, 120/-. 5. That after coming to know the order of assessment, the appellant filed appeal before the CIT (A), Kota which was, on request, transferred to CIT (A)-2, BBSR and numbered as 0299/2016-17 in which by filing the documents/materials the Appellant has substantiated that order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 30/03/2015 although approval was taken for issuance of the same because had it been issued on the same date the authority concerned would not have hesitated to provide the registration no and date along with the report. The order of assessing officer is conspicuously silent on this particular issue. Thus, the order of the AO is not sustainable in the eyes of law. 9. That notice to an Assessee under Section 148 and 142 (1) of the Act is different with each other when notice U/s. 148 has not served on the appellant issuance of notice U/s. 142 of the Act is redundant. Service of notice on the Assessee strictly in terms of Section 148 read with Section 282 (1) of the Act is a jurisdictional requirement. Section 153 [2] of the Act made it clear that without such service of notice the AO could not proceed to make the re-assessment. The onus was on the Revenue to show that service of notice had been effected on the Assessee. The failure to serve such notice would lead to the inevitable result of invalidating the assessment order. 10. That Section 148 of the Act is a jurisdictional requirement. The relevant portion of Section 148 (1) provides that 148. Issue of notice where inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act for initiating reassessment proceedings is not a mere procedural requirement; the service of the prescribed notice on the assessee is a condition precedent to the validity of any reassessment made under section 147. If no notice is issued or if the notice issued is shown to be invalid, then the proceedings taken by the Income tax Officer without a notice or in pursuance of an invalid notice would be illegal and void. 15. That the learned CIT [A] upheld the order of the learned Assessing Officer by applying the provision under section 292 BB of the I.T. Act which came into effect from 1.4.2008 on the pretext that as the assessment was after introduction of section 292 BB of the IT Act and notice issued on 30.3.2016 U/s.148 of the Act, notwithstanding the period of assessment [2008-2009], service of notice U/s 148 the order of assessment is valid. In this regard, it is respectfully submitted that the learned CIT (A) is erred in law to the effect that the ground so implanted to make an order which is void ab initio from the beginning is against the sound principle of law laid down in the case of Commissioner of Income Tax (Central) I v Chetan Gupta by the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Section 148 shall be issued after the prescribed limitation has lapsed. Section 148(1) provides for service of notice as a condition precedent to making the order of reassessment. Once a notice is issued within the period of limitation, jurisdiction becomes vested in the Assessing Officer to proceed to reassess. The mandate of Section 148(1) is that reassessment shall not be made until there has been service. The Delhi High Court in the matter of Commissioner of Income-tax (Central)-I v. Chetan Gupta culled the principles relating to Section 148 of the IT Act as under: - 46. To summarize the conclusions: ( i) Under Section 148 of the Act, the issue of notice tothe Assessee and service of such notice upon the Assessee are jurisdictional requirements that must be mandatorily complied with. They are not mere procedural requirements. ( ii) For the AO to exercise jurisdiction to reopen an assessment, notice under Section 148 (1) has to be mandatorily issued to the Assessee. Further the AO cannot complete the reassessment without service of the notice so issued upon the Assessee in accordance with Section 282 (1) of the Act read with Order V Rule 12 CPC a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
