TMI Blog2019 (7) TMI 1950X X X X Extracts X X X X X X X X Extracts X X X X ..... nly the Assessing Officer gets the jurisdiction to re-open the assessment. In the cases before us, the notices u/s.148 of the Act, though were issued on the last day of the relevant assessment year, were never served on the assessee. Even after the assessee have brought to the notice of Assessing Officer that the notices have not been served on them, no steps have been taken by the Department to rectify the said defect. Therefore,we hold that the notice u/s.148 of the Act is invalid and consequently, the assessments are also invalid. The reliance of the CIT (A) on the provisions of section 292B is also not sustainable, because the defect is not a procedural defect but is a jurisdictional one. In the result, the appeals of both the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer got the notice u/s.148 of the Act, served by affixture on the same address on 03-05-2017. All the subsequent letters to the said address were returned to the office un-served by the postal authorities. Subsequently, a show cause letter dt.18-08-2017 was prepared and proposed to be served on the assessee and then changed the address of the assessees was noticed. Thus, a show cause notice was served in the new address on 30-08- 2017. In response to which, the assessee filed a letter stating that the notice u/s.148 was not served on him within the period of time i.e., on or before 31-03-2017 and hence the notice was time barred and invalid. The objections of assessee were rejected on the ground that the notice u/s.148 of the Act was serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d non service of Notice issued u/s148 is incurable defect and Reassessment Order passed without serving Notice u/s 148 is void. 4) That the Assessing Officer's assertion that he was not having correct address of Appellant is wrong as he was already corresponding with Appellant at the correct address and his action of sending the Notice issued u/s 148 to the incorrect address and after the Notice was returned un-served, getting the Notice affixed at the same address is illegal. 5) That the judgment of Hon'ble Supreme Court in Sky Hospitality LLP Vs ACIT relied upon by learned CIT(Appeals) was rendered on different facts and hence does not apply to the facts of Appellant's case. 6) That the learned CIT(Appeals) erred in h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n assessee are given. He submitted that even after the assessees have brought to the notice of the Assessing Officer about the change of address, there was no action taken by the department by serving of fresh notice at the new address and the department cannot plead ignorance about the new address and hence the notice u/s.148 of the Act was not validly served on the assessees. In support of this contention, he placed reliance upon the following : (i) Judgment of the Hon'ble Supreme Court of India in the case of (i) Y. Narayana Chetty and another Vs. ITO [35 ITR 388] (SC), wherein it was held that - the service of the prescribed notice on the assessee is a condition precedent to the validity of any reassessment made under section 34 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kar Vs. ITO [88 ITR 374] (Cal), wherein it was held that the service of notice under section 148 is mandatory and is a condition precedent for the initiation of reassessment proceedings. The mere fact that the serving officer did not find the assessee to be served with the notice at his address is not sufficient to establish that he could not be found and the service of notice by affixture without reasonable attempt to find assessee is not proper. (vi) Also in the case of CIT Vs. Hotline International P. Ltd., [296 ITR 333] (Del), it was held that Without making any efforts to serve the notice to assessee, service of notice by affixture is not correct . (vii) In the case of CIT Vs. Avi-Oil India P. Ltd., [323 ITR 242] (P H), it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has thought it fit to issue notice only on the last day dt.31-03-2017 and has sent the notice by Speed Post to the address mentioned in the sale deed. The said address is the same as mentioned in the return of income for the AY.2009-10. Rule 127 of the I.T Rules provides that the notices can be served on any of the places given there under. If the notice is sent to the address given in the return of income, but could not be served on the assessee, then, it is incumbent upon the Assessing Officer to verify the correct address of the assessee and send the notice accordingly in the mode and order prescribed under rule 127. In the case before us, we find that the Assessing Officer has resorted to service of notice by affixture at the old add ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
