9911796707
TMI Blog2021 (4) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. Your appellant therefore prays that the assessment/reassessment complete in mechanical order by the Ld. AO be quashed as being null and void. 2. In the facts and circumstances of the case and in law, the Ld. CIT(A) erred in not appreciating the fact that the impugned notice issued by the Ld. Assessing officer u/s 148 and u/s 142(1) was never received by the Appellant and therefore he was prevented by reasonable and sufficient cause for non compliance of the aforesaid notices. Your appellant therefore prays that the assessment/reassessment completed without serving the notice u/s 148/142(1) be quashed as being null and void. 3. In the facts and circumstances of the case and in law the Ld. Commissioner of Income Tax (Appeals) erred in confirming the assumption and presumption of the basic income at Rs. 1,60,000/- and addition of Rs. 16,74,860/- thereto made by the Ld. Assessing Officer u/s 69A on account of cash deposited by the appellant during the year. Your appellant therefore prays that the assessment/reassessment completed by the Ld. AO merely on the basis of assumptions and presumptions and without appreciating the facts be quashed. 4. In the facts and ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the said notice too was returned unserved. In the backdrop of the aforesaid facts the A.O issued a letter under Sec. 133(6) to the branch manager, Cosmos Co-operative Bank Ltd., Branch : Ghatkopar, Mumbai, and called for certain information. However, as stated in the assessment order no reply was received from the bank upto the date of framing of the assessment under Sec. 144 r.w.s 147, dated 10.11.2018. As the notices issued u/ss. 148/142(1) could not be served upon the assessee thus, the A.O, is stated to have effected service of the said notices through affixture at the last known address of the assessee. However, as the assessee despite having been afforded sufficient opportunity failed to put up an appearance in the course of the proceedings before him, the A.O, being of the view that the assessee was not interested in prosecuting the assessment proceedings framed the assessment to the best of his judgment, vide his order passed under Sec. 144 r.w.s 147, dated 10.11.2018 and treated the cash deposits of Rs. 16,74,860/- in the assessee's saving bank account as his unexplained money under Sec. 69A of the Act. 3. Aggrieved, the assessee assailed the assessment order before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for A.Y. 2005-06, and thereafter, as his annual income in the subsequent years remained substantially below the basic exemption limit thus, no return of income for the said years was filed by him. It was averred by the ld. A.R that the residential address of the assessee was viz. "Building No.59, Room No. 1764, Sagar Housing Society, Pant Nagar, Ghatkopar-(W), Mumbai 400075" and it was never changed during his life time. It was submitted by the ld. A.R that though the address borne on the notice under Sec. 148 (as gathered from a perusal of the records) was correctly stated however, that mentioned in the assessment order and also the other notices, viz. "Goswami 1-2 Sapna Apartment, 3rd Floor, LBS Marg, Ghatkopar - (W), Mumbai - 400 086" was an incorrect address. It was further stated by the ld. A.R that although it was the claim of the revenue that the notice issued under Sec. 148, dated 21.03.2018 was uploaded electronically on the portal of income-tax, however, the service of the same by the said means was incomprehensible as the assessee did not have any e-mail address. In order to fortify her aforesaid claim the ld. A.R had drawn our attention to the screenshot of the income- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. D.R that as the assessee had failed to substantiate the source of the cash deposits in his bank account thus, the A.O, had rightly added the same as his unexplained money within the meaning of Sec.69A of the Act. 6. We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record. As the assessee has assailed the validity of the assessment, for the reason, that de hors service on the assessee of a notice under Sec. 148 the assessment framed under Sec. 144 r.w.s 147, dated 10.11.2018 cannot be sustained and is liable to be vacated, we shall, thus, first advert to and therein deal with the said issue first. As per Section 148 of the Act, the A.O before making an assessment, reassessment or recomputation under Sec.147, shall serve on the assessee a notice requiring him to furnish within the stipulated time period as may be specified in the notice, a return of his income for the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed. Admittedly, the very jurisdiction for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (5) of sub-section (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 which the communication relates; or (iii) the address available in the last income-tax return furnished by the addressee; or (iv) in the case of addressee being a company, address of registered office as available on the website of Ministry of Corporate Affairs: Provided that the communication shall not be delivered or transmitted to the address mentioned in items (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 items (i) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unication.]" In the backdrop of the mode and manner of service of a notice contemplated in Sec. 282 r.w Rule 127, we shall now test as to whether the Notice issued under Sec. 148, dated 21.03.2018 was validly served upon the assessee prior to framing of the assessment under Sec. 144 r.w.s 147, dated 10.11.2018. As is discernible from the assessment order, we find that it is a matter of fact borne from the record that the notice issued by the A.O under Sec. 148, dated 21.03.2018 and that issued under Sec. 142(1), dated 28.08.2018 were both returned unserved. As observed by us hereinabove, it is stated by the A.O that as the notice under Sec. 148 could not be served upon the assessee thus, the same, was served through affixture at the last known address of the assessee. Rebutting the aforesaid claim of the A.O, it is stated by the ld. A.R that no notice under Sec. 148 was ever served upon the assessee. We have given a thoughtful consideration to the aforesaid counter claims of the authorised representatives for both the parties. As observed by us hereinabove, it is the claim of the assessee that the address mentioned in the assessment order, viz. "Goswami 1-2 Sapna Apartment, 3rd Fl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself militates against the aforesaid unsubstantiated claim of the A.O of having carried out a valid service of the notice issued under Sec. 148, dated 21.03.2018 through affixture at the last known address of the assessee. In the backdrop of the aforesaid facts, we are unable to persuade ourselves to subscribe to the validity of the service by affixture of the notice issued under Sec. 148, dated 21.03.2018, as had been claimed by the A.O in the assessment order. 8. Insofar the claim of the A.O that the notice issued under Sec. 148 was sent to the assessee through ITBA on 21.03.2018 is concerned, the same is found contrary to the facts borne from the record. Before us, the revenue had relied upon a letter received from the ITO- 27(2)(1), Mumbai, dated 21.01.2021 and therein claimed that the notice issued under Sec. 148 was served on the assessee on 21.03.2018 through ITBA. However, on a perusal of the screenshot of the income-tax portal of the assessee as had been placed on our record at Page 16 of the assessee's Paper Book (for short "APB'), we find that the same though reveals that the notice under Sec. 148 was issued on 21.03.2018 [document ID No. ITBA/AST/S/148/2017- 18/1009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the aforesaid fact, the A.O as per Sec. 282 r.w Rule 127(2)(a)(iii) of the Income Tax Rules, 1962 was obligated to have served the notice under Sec. 148 at the aforesaid residential address of the assessee that was duly available with him. Apart from that, as per Sec. 282 r.w Rule 127(2)(a)(i) the A.O could have validly served the notice issued under Sec. 148, dated 21.03.2018 at the aforesaid address of the assessee that was also available in his PAN database. Further, on a perusal of the details furnished by the assessee before us, we find that pursuant to the notice issued by the A.O under Sec. 133(6), dated 11.07.2018 to the assessee's bank viz. Cosmos Cooperative Bank Ltd, Branch: Ghatkopar (W), Mumbai, the latter vide its letter dated 30.07.2018 had furnished with him the complete details of the assessee, viz. copy of the account opening form; copy of the KYC documents, PAN Card, of the assessee; copy of KYC documents, PAN Card and Passport of Mrs. Pankaj Bharti Shah (widow of the assessee); and the contact number of the assessee/widow of the assessee. In the backdrop of the aforesaid facts, we are unable to understand that now when the actual address of the assessee was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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