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TMI Blog2020 (9) TMI 1125X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee during the course of assessment and appellate proceedings. 4. The Ld. A.O. has not allowed proper opportunity of being heard before passing order u/s 144. 5. The order is against the principles of natural justice." 2. Besides the above grounds of appeal, the assessee has filed petition for admission of additional ground, which for the sake of completeness is reproduced below: "6. That the reason to believe were recorded only with a view to verify the source of cash deposit of Rs. 14,07,000/- in savings bank account which narration does not amount to requisite satisfaction for forming belief of escapement of income within the meaning of section 147 and due to such a fundamental deficiency in recording of reasons the assessment proceedings got vitiated rendering the assessment order as null and void." 3. Learned counsel for the assessee, at the outset, submitted that additional ground, filed by the assessee, is purely legal plea which goes to the root of the assessment and for adjudicating the said ground of appeal, the relevant material and information is already available on record and therefore, keeping in view the decision of Hon'ble Supreme Court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, on the other hand, submitted that after receiving reply from the assessee the Assessing Officer did not carry out any further investigation and simply stated that evidence of sale of shop and stock was not enclosed and therefore, he formed opinion regarding escapement of income which is not in accordance with law. 7. I have heard the rival parties and have gone through the material placed on record. I find that the Assessing Officer recorded the reasons on 27/03/2017 after taking into consideration written reply dated 06/03/2017. In the reasons recorded, the Assessing Officer has mentioned that the assessee has not submitted any proof regarding sale of cloth and shop and therefore, he held that the contention of the assessee was not acceptable and only thereafter he proceeded to hold that income has escaped assessment and then issued notice u/s 148 of the Act. In my opinion, the case laws relied on by Learned counsel for the assessee are distinguishable and I am in agreement with the arguments of Learned D. R. and therefore, the additional ground of appeal taken by the assessee is dismissed. The learned AR was however asked to proceed with other ground of appeal. 8. Learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department did not make any attempt to issue notice to the assessee on the address listed in PAN database despite of the fact that the assessee had mentioned his PAN on the letter dated 06/03/2017 and in this respect our attention was invited to page 32 of the paper book where such copy of letter was placed. 9. Learned D. R., on the other hand, submitted that the assessee was issued notice in which he participated and his counsel also participated and took adjournment and in this respect our attention was invited to the copy of the assessment order wherein the Assessing Officer has noted all these facts. Learned D. R. therefore, submitted that having participated in the proceedings, it cannot be said that the notice u/s 148 was not served upon the assessee whereas the fact remains that the notice was served through registered post. 10. Learned counsel for the assessee, in his rejoinder, submitted that notice u/s 148 mentions the address as B-220, Rajendra Nagar, Bareilly on which the registered post was sent but it was not received by the assessee and instead the assessee had received notice u/s 142(1) which was served on the assessee at the correct address of C-606, Patel Nagar, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the new address in the return of income without specifically intimating the Assessing Officer with respect to change of address and without getting the PAN database changed, is not enough and sufficient. In absence of any specific intimation to the Assessing Officer with respect to change in address and/or change in the name of the assessee, the Assessing Officer would be justified in sending the notice at the available address mentioned in the PAN database of the assessee, more particularly when the return has been filed under E-Module scheme. It is required to be noted that notices under Section 143(2) of the 1961 Act are issued on selection of case generated under automated system of the Department which picks up the address of the assessee from the database of the PAN. Therefore, the change of address in the database of PAN is must, in case of change in the name of the company and/or any change in the registered office or the corporate office and the same has to be intimated to the Registrar of Companies in the prescribed format (Form 18) and after completing with the said requirement, the assessee is required to approach the Department with the copy of the said document an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e communication shall not be delivered or transmitted to the address mentioned in item (i) to (iv) where the addressee furnishes in writing any other address for the purposes of communication to the income-tax authority or any person authorised by such authority issuing the communication: Provided further that where the communication cannot be delivered or transmitted to the address mentioned in item (i) to (iv) or any other address furnished by the addressee as referred to in first proviso, the communication shall be delivered or transmitted to the following address:- (i) the address of the assessee as available with a banking company or a co-operative bank to which the Banking Regulation Act, 1949 (10 of 1949) applies (including any bank or banking institution referred to in section 51 of the said Act); or (ii) the address of the assessee as available with the Post Master General as referred to in clause (j) of section 2 of the Indian Post Office Act, 1898 (6 of 1898); or (iii) the address of the assessee as available with the insurer as defined in clause (9) of section 2 of the Insurance Act, 1938 (4 of 1938); or (iv) the address of the assessee as furnished in Form No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es at the old address. Even after issuing the reassessment notice, all succeeding notice under Section 142(1), were sent to the old address. It was in these circumstances that the reassessment was completed on best judgment basis. 6. This Court recollects the decision of the Privy Council in Nazir Ahmed v. King Emperor (1936) 38 BOM LR 987 which had been followed subsequently in several Supreme Court rulings that where the law mandates doing something in a particular manner, that is the only manner permissible in law and no other mode can be considered legal. Therefore, the AO was circumscribed and bound by the express mandate of Rule 127 which is clearly addressed to the authorities of the Revenue vis-a-vis the mode of communication. Given these compulsions, the Revenue's argument is a desperate "fall back" of the last resort i.e. the notice which was never under Section 292-B of the Act is one of despair. It amounts to saying that a notice which was never sent or received is deemed to have been sent and all proceedings despite such lack of notice and despite the Revenue's fragrant violation of law are deemed to be justified. In such circumstances, the argument, i.e. t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . I further find that Hon'ble Allahabad High Court in the case of Pr. CIT vs. Mohd. Rizwan (supra) has framed the following two questions besides others, which are reproduced below: "(i) Whether notice under Section 148 of Act, 1961 is a procedural step or jurisdictional. (ii) Whether notice issued by an authority having no jurisdiction can attain validity by referring to Section 292BB of Act, 1961 only for the reason that Assessee participated before transferee Assessing Authority." The Hon'ble court vide order dated 30/03/2017 has 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. For the sake of completeness, the findings of Hon'ble High Court from para 45 to 57 are reproduced below: "45. When a notice under Section 147/148 issued is a jurisdictional step, it cannot be treated to be mere irregularity curable under Section 292BB. In fact, Section 292BB has no application to a case where no valid notice has been issued by Competent A.O. This is clear from a bare reading of Section 292BB of Act, 1961 which re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of law." 52. It is well settled that a jurisdiction can neither be waived nor created even by consent and even by submitting to jurisdiction, an Assessee cannot confer upon any jurisdictional authority, something which he lacked inherently. 53. Even if, it can be said that Assessee submitted to jurisdiction of A.O., law is that Assessee cannot confer jurisdiction on an authority who did not have the same and we find support from Commissioner of Income Tax Vs. Hari Raj Swarup and sons (1982) 138 ITR 462 (Alld.). 54. In Mir Iqbal Husain Vs. State of U.P. 1963 (50) ITR 40, it was held that requirement of valid notice cannot be waived. The mere fact that Assessee filed Return of Income pursuant to invalid notice would not render notice valid or validate subsequent proceedings which are vitiated in law for want of valid notice. 55. In Raza Textile Ltd. Vs. Income Tax Officer, Rampur (1973) 87 ITR 539 (SC), Court said that it is incomprehensible to think that a quasi-judicial authority like A.O. can erroneously decide a jurisdictional fact and thereafter proceed to impose a levy on a citizen. 56. If an order is passed by a judicial or quasi-judicial authority having no ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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