TMI Blog2022 (12) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice of notice u/s 148 - We note that the notice under section 148 of the Act was issued well in time at the address available on record with the revenue Department. The fact that the assessment proceeding initiated was known to the assessee s father. Merely for the fact that the assessee left home without informing anyone to unknown location the notices issued and duly served on last given address cannot held as illegal/invalid service of notice. See ATULBHAI HIRALAL SHAH [ 2016 (6) TMI 564 - GUJARAT HIGH COURT] . Thus we hold that the service of notice under section 148 of Act and other subsequent notices cannot held as invalid service of notice, for the reason that the revenue has issue notices on last known address of the assessee. Revenue cannot be held guilty for the fact the assessee has left that place without informing anyone for unknown location. Thus on this count also, the assessee fails. Capital gain - We note that the property was transferred by the assessee to his mother by way of sale deed no. 3852 dated 13-04-2006 wherein the consideration on the transfer of the property in dispute was duly recorded. There was nothing mention in the sale deed justifying t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w in retaining addition of Rs. 6,77,105/- out of total addition made of Rs. 7,31,600/- u/s. 50C of the Act on the alleged ground that FMV of the plot of land determined by the Stamp Valuation Authority is higher than the sales consideration recorded in sales. The addition retained in total disregards to the substance and essence of the transaction is totally unjustified on facts as also in law and may kindly be directed to be deleted. 4.0 Your Honor's appellant craves leave to add, amend, alter or withdraw any or more grounds of appeal on or before the hearing of appeal. 3. The only effective issue raised by the assessee is that the learned CIT (A) erred in upholding the validity of notice issued under section 148 of the Act and assessment framed under section 147 of the Act and thereby confirming the addition of Rs. 7,31,600/- under section 50C of the Act. 4. The facts in brief are that the assessee is an individual and not filed return of income for the year under consideration. The AO received an information that the assessee has sold immovable property vide sale deed no. 3852 dated 13-04- 2006 having document value of Rs. 5 lakh and Jantrai value of Rs. 7,31,600 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned property in the name of his (assessee s) mother Smt. Ilaben A. Modi. Accordingly, the impugned property was transferred to his mother through sale deed instead of gift deed as advised by the civil advocate. Thus, the assessee claimed that there was no actual transfer of property falling under the ambit of section 45 of the Act. 7. However, the learned CIT(A) dismissed the ground of appeal of the assessee by observing as under: In these grounds the assessee has challenged validity of notice u/s.148 and assessment u/s.144. it is contended that notice u/s.148 is invalid on the ground that it is based on borrowed satisfaction and that the notice was not validly served upon assessee. As regards the satisfaction, I find that when the AO came in possession of information that assessee had sold immovable property and had not declared capital gains on such sale as no income tax return had been filed by assessee, the issuance of notice u/s 148 on basis of such uncontroverted information cannot be said to be on borrowed satisfaction. This contention is not tenable. As regards the service of notice u/s 148 and 144, I find that the notice had been served on the given address ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DVO to determine the consideration for working out the capital gain. 11. On the other hand, the learned DR vehemently supported the order of the authorities below. 12. We have heard the rival contention of both the parties and perused the materials available on record. The facts of the case have been elaborated in the previous paragraph, hence we are not inclined to repeat the same for the sake of brevity. Admittedly, the assessee has challenge the order of the learned CIT(A) on merit as well as on technical ground i.e. validity of assessment framed under section 144 r.w.s. 147 of the Act. 12.1 First, we proceed to decide the appeal of the assessee on technical ground. We note that the assessee before the learned CIT(A) has challenged the validity of assessment on two count. In the first fold of argument it was submitted that the AO was not having any material other than an information that the assessee has transferred immovable property, hence the reason to believe of the AO for escapement of income was based on borrowed satisfaction. In this regard, it is pertinent to note that the assessee had not filed the return of income for the year under consideration. Subsequentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the basis of official remark of the Government of India Department that the service could not be effected since the addressee had left the place. 13. Only on the ground of non-issuance of service of notice, we are not inclined to terminate the reopening proceedings since no other contention regarding the validity of the notice was raised. 12.3 Respectfully following the principle laid down by the Hon ble High Court in case cited above we hold that the service of notice under section 148 of Act and other subsequent notices cannot held as invalid service of notice, for the reason that the revenue has issue notices on last known address of the assessee. Revenue cannot be held guilty for the fact the assessee has left that place without informing anyone for unknown location. Thus on this count also, the assessee fails. 12.4 On merit of the case, we note that the property was transferred by the assessee to his mother by way of sale deed no. 3852 dated 13-04-2006 wherein the consideration on the transfer of the property in dispute was duly recorded. There was nothing mention in the sale deed justifying the stand of the assessee i.e. the transfer was in the nature of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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