TMI Blog2020 (9) TMI 1125X X X X Extracts X X X X X X X X Extracts X X X X ..... OHD. RIZWAN PROP. M/S M.R. GARMENTS MOULVIGANJ LUCKNOW [ 2017 (3) TMI 1792 - ALLAHABAD HIGH COURT] as considered the applicability of section 292 BB wherein it has been held that notice issued u/s 147/148 is a jurisdictional step and it cannot be treated to be mere irregularity curable u/s 292 BB of the Act - Decided in favour of assessee. - I.T.A. No.482/Lkw/2019 - - - Dated:- 25-9-2020 - Shri T. S. Kapoor, Accountant Member For the Appellant : Shri P. K. Kapoor, C. A. For the Respondent : Shri Ajay Kumar, D.R. ORDER This is an appeal filed by the assessee against the order of learned CIT(A), Bareilly dated 11/06/2019 pertaining to assessment year 2010-2011. The assessee has taken the following grounds of appeal: 1. Ld. CIT(A) erred in not accepting the plea of the assessee that notice u/s 148 was wrongly issued to the assessee, as he had duly complied AIR notice and explained the source of deposit. 2. Ld. CIT(A) erred in not accepting the plea that the order of A.O. is bad in law as the notice issued by him u/s 148 was not served on the assessee. 3. Ld. CIT(A) has erred in law as well as on facts in confirming a sum of ₹ 12,33,330/- to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53 Taxmann.com 366 (Delhi-Trib). Further reliance was placed on an order of Amritsar Bench of the Tribunal in the case of Amrik Singh vs. Income Tax Officer [2016] 159 ITD 329 (Amritsar-Trib). Learned counsel for the assessee submitted that in this case it has been held that the Assessing Officer cannot arrive at a reason to believe merely on the basis of deposits in the bank and he has to specifically record the reason that income has escaped the assessment. Therefore, it was argued that the reason recorded having no nexus with the income escapement are no reason and therefore, the additional ground of appeal may be allowed and appeal of the assessee may be allowed. 5. Learned D. R., on the other hand, objected to the arguments of Learned counsel for the assessee and submitted that the Assessing Officer, before issuing notice u/s 148 and before recording the reasons, issued a non statutory letter dated 06/03/2017 and asked the assessee to explain and in this respect my attention was invited to copy of reasons recorded, placed at paper book page 59where the Assessing Officer has recorded these facts and therefore, it was argued that in the case laws relied on by Learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not at all served upon the assessee and therefore, the consequent proceedings are null and void. Learned counsel for the assessee in this respect relied on the judgment of Hon'ble Supreme Court in the case of Pr. CIT vs. I-Ven Interactive Ltd. [2019] 267 Taxman 471 (SC) wherein the Hon'ble Supreme Court has clearly held that notice u/s 143(2) has to be issued at the address available in the database of the PAN and in this respect our specific attention was invited to para 7 of the order where the Hon'ble Court has made such observations. Learned counsel for the assessee submitted that though the Hon'ble Court has made the findings in respect of notice u/s 143(2) but they are equally applicable to notice u/s 148 also and in this respect our further attention was invited to a decision of Hon'ble Delhi High Court in the case of Veenadevi Karnani vs. Income Tax Officer [2019] 102 Taxmann.com 470 (Delhi) where the Hon'ble High Court, after noting down the requirements of Rule 127 of the I.T. Rules read with section 282 of the I.T. Act, has noted that the communication of notice had to be first made at the address available in the PAN database or address av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties and have gone through the material placed on record. The only dispute in this appeal, as argued by both the parties, is as to whether the notice issued u/s 148 of the Act was served upon the assessee or not. In this respect the copy of notice placed at page 52 of the paper book is quite relevant where the address of the assessee has been mentioned as B-220, Rajendra Nagar, Bareilly. The address as per PAN database of the Department, placed at page 58 of the paper book, clearly shows that the address of the assessee is C-606, Patel Nagar, Near Balaji Mandir, Bareilly. The assessee vide reply dated 06/03/2017 has also mentioned the PAN in his reply and therefore, the Assessing Officer should have ensured from the PAN database the correct address of the assessee and should have issued notice u/s 148 on the correct address which has not been done. The Hon'ble Supreme Court in the case of Pr. CIT vs. I-Ven Interactive Ltd. (supra) while reversing the order of Hon'ble High Court in a case involving notice u/s 143(2) has observed as under: 7. Now so far as the observations made by the High Court while concurring with the view of the learned Tribunal that merely by fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct the changed Pitampura address. The Assessing Officer (AO) continued to be the same i.e. ITO Ward 25(2) till November, 2014. In these circumstances the assessee complains that the AO should have done most to exert himself in the course of the law i.e. to ascertain the correct address at which the reassessment notice (issued on 13.12.2013) to be served. Rule 127 of the Income Tax Rules, which prescribes mode of service of notices, summons, requisitions and other communications states as follows: 127.(1) For the purposes of sub-section (1) of section 282, the addresses (including the address for electronic mail or electronic mail message) to which a notice or summons or requisition or order or any other communication under the Act (hereafter in this rule referred to as communication ) may be delivered or transmitted shall be as per sub-rule (2). (2) The addresses referred to in sub-rule (1) shall be- (a) for communications delivered or transmitted in the manner provided in clause (a) or clause (b) of subsection (1) of section 282- (i) the address available in the PAN database of the addressee; or (ii) the address available in the income-tax return to whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (ii) the e-mail address available in the last income-tax return furnished by the addressee; or (iii) in the case of addressee being a company, email address of the company as available on the website of Ministry of Corporate Affairs; or (iv) any e-mail address made available by the addressee to the income-tax authority or any person authorised by such income-tax authority. 5. Rule 127(2) clearly states that the addresses to which a notice or summons or requisition or order or any other communication may be delivered or transmitted shall be either available in the PAN database of the assessee or the address available in the income tax return to which the communication relates or the address available in the last income tax return filed by the assessee - all these options have to be resorted to by the concerned authority - in this case the AO. Therefore, in the facts of this case when the AO issued the reassessment notice, as he did on 13.12.2013 - he was under a duty to access the available PAN data base of the addressee or the address available in the income tax return to which the communication related or the address available in the last income return file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct address in the manner known to law. The assessee has relied upon a screenshot of the PAN database at the stage when the petition was filed to say that the Revenue always had the wherewithal to access the correct address, PAN number and all other relevant details including the email ID as well as the bank account. The omissions of the AO deserves, therefore, to be not only adversely noticed but appropriately reflected in his or her confidential reports and appropriate proceedings initiated by the Revenue authorities, which is so directed. The concerned Commissioner, Principal Commissioner or other superior authorities, as the case may be, are directed to file a report in this regard within eight weeks from today. In the above decision of Hon'ble Delhi High Court, the Hon'ble Court has clearly held that notice has to be issued either on the address available in PAN database or address available in the income tax return and has clearly held that the Assessing Officer was circumscribed and bound by the express mandate of Rule 127. It has been held in this case that is the notice could not be served on the address available in the PAN data base or at the address men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of notice upon Assessee and not with regard to competence of authority who has issued notice. 47. A similar question was considered in Commissioner of Income Tax, Gujarat-II Vs. Kurban Hussain Ibrahimji Mithiborwala 1972 (4) SCC 394 and Court said Income Tax Officer's jurisdiction to reopen an assessment under Section 34 depends upon issuance of a valid notice. If notice issued by him is invalid for any reason, entire proceedings taken by him would become void for want of jurisdiction. Court then held that notice was invalid as A.O. had no jurisdiction to revise assessment then it cannot be treated to be mere irregularity so as to validate proceedings of assessment if the Assessee had participated. 48. Similar is the view taken by a Full Bench of this Court in Laxmi Narain Anand Prakash Vs. Commissioner of Sales Tax, Lucknow AIR 1980 ALL 198. 49. The contention of learned counsel for Revenue that participation of Assessee before Jurisdictional A.O. would operate as acquiescence or waiver and will not invalidate proceedings is thoroughly misconceived. 50. In Karnal Improvement Trust, Karnal Vs. Smt. Prakash Wanti and another (1995) 5 SCC 159, Court ..... 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