9911796707
TMI Blog2019 (5) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... oking in to the record and without calling for any evidence of service from the AO on whom the burden of service lies at the first instance by passing almost non speaking order in just 8 words "There is no evidence of non-service of notice". It is prayed that due to above facts and circumstances of the case the assessment proceedings may be quashed ab-initio. (b). That the Id. CIT (A) as well as the Ld. AO failed to see the report of the server on the notice u/s 148 itself and also the appeal which was filed through legal heir that the assessee is dead and hence not available. Sh. Sunil Kumar had died on 18/12/2007 much before the date of issue of notice. The Ld. CIT (A) has erred in law by confirming the assessment on a dead person. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate proceedings. It is prayed that action of the CIT(A) in confirming the order of the AO in taxing the total receipts be quashed and necessary computation of capital gain as per law may kindly be allowed. 5. The Ld. CIT (A) has erred in law and in facts in rejecting the claim of the assessee u/s 54F of the I.T. Act. It is prayed that the assessee may be allowed the claim made u/s 54F of the Act." 2. From the above grounds of appeal and the attending facts of the case, it reveals that the assessee has challenged the impugned order on validity of notice issued u/s. 148 and assessment of capital gains in the hands of assessee assuming the land in question as capital asset. Challenge is also made with respect to deduction u/s. 54F of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment u/s 143/144 of the Act. 3. Appeal preferred by the assessee before the learned CIT(A) on two grounds, namely, that the assessment is bad for want of issuance and service of proper notice u/s 148 and also that when the agricultural land was sold and long term capital gains arises from such transfer, the capital gains are exempt being not a capital asset as per Section 2(14)(iii) (b) of the Act.. However, learned CIT(A) dismissed the appeal on these two counts. 4. Assessee is, therefore, before us in this appeal challenging the validity of the notices issued u/s 148 stating that the learned CIT(A) dismissed the ground relevant to this issue by passing a non speaking order and also without giving even a cursory look at the reasons r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Basing on this, he argued that there is no proper issuance or service of notice u/s 148 and this vital fact was overlooked by the learned CIT(A). 6. For the sake of clarity, we deem it just and proper to extract Para 3.1 of the order of the learned CIT(A) to the extent it is relevant: "Brief facts as recorded in the assessment order on this issue are as under:- "On the basis of information available in the case of M/s Mool Chand HUF, notice u/s 148 of the Income Tax Act'1961 was issued to the appellant for A.Y. 2006-07 on 26.03.2013 with prior approval from Joint Commissioner of Income Tax, Rewari Range, Rewari after recording the reasons. The extract of the reasons is as follows: "On the basis of AIR information available in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act issued on 26.3.2013 and the copy of the order dated 28.3.13 in the case of Mool Chand, HUF. It is interesting to note that the reasons supplied under the RTI Act are not identical to the one that were extracted by the learned CIT(A) in his order. The relevant portion of the reasons furnished under RTI Act read as follows: "As per AIR information available, M/s Mool Chand HUF had sold a land at Dharuhera for a consideration of Rs. 8,89,12,500/-. The land in question was a capital assets, therefore, notice us/ 148 for AY 2006-07 was issued to M/s Mool Chand HUF. During the course of assessment proceedings in the case of M/s Mool Chand HUF, Smt. Shanti Devi, wife and Ajit Singh-sunil son and Smt. Savita-Shashi Bala daughter of late ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asons recorded in this matter. We, therefore, hold that there is no proper issuance and service of notice u/s 148 in this matter and consequently, the assessment order is liable to be quashed.
Appeal of the assessee is allowed accordingly."
6. There being no change in the facts, circumstances and contentions of both the parties, the appeal of the assessee is found to have merits and the reassessment order deserves to be quashed on legal aspect of the case. Once, the assessment is held invalid, we need not to enter other grounds of appeal on merits of the addition or exemption u/s. 54F of the Act.
7. In the result, the appeal of the assessee is allowed.
Order pronounced in the open court on 26.04.2019. X X X X Extracts X X X X X X X X Extracts X X X X
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