TMI Blog2024 (2) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... aking available the e-mail ID, so that the same may be construed as the registered email ID of the assessee. As far as the present case is concerned, it has been the consistent stand by the petitioner that he has used or made available the e-mail ID: taxmohit56@gmail.com for e-filing of his income-tax return even since the Assessment Year 2020-21 and the same has been used by him even for filing of the latest income-tax return for the Assessment Year 2022-23. Further, the said email ID has been also mentioned by him in the income-tax return and the same is relatable to PAN data base and also mentioned in the master data of the petitioner s Company as available from the official website of the Ministry of Corporate Affairs at the relevant time. Therefore, taking a holistic view of the matter, it has to be held that the e-mail ID: taxmohit56@gmail.com is the registered e-mail address of the petitioner company and it is the e-mail ID, which has been made available to the Authority by the assessee. Recently, the Delhi High Court in the case of Jyoti Narang Vs Income tax Officer [ 2023 (7) TMI 1377 - DELHI HIGH COURT] has also set aside the penalty and demand notice on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the said property had executed sale deed of the property in favour of the petitioner on 16.04.2018 i.e. relevant for the Assessment Year 2019-20. This execution of sale deed dated 16.04.2018 and ownership of the said property are pending adjudication in WPIL No. 418 of 2022 : Mool Chand Anuragi and another Vs. State of U.P. and others, before this Court. (4) Noticing the transaction made in respect of purchase of the said property in the Assessment Year 2019-20, a notice under Section 148A(b) dated 07.03.2023 had been issued by the income tax department to the petitioner on the ground that there had been a heavy financial transaction during the said assessment year for the sale/purchase of a property amounting to Rs. 6,31,10,000/- as per section 56(2)(x) of the Income Tax Act. (5) It is the case of the petitioner that for the first time, they received a notice dated 12.10.2023 under Section 142 (1) of the Act, 1961 for the Assessment Year 2019-20, which was sent to the petitioner on its previous mail address registered on the portal of the Income Tax Department, namely, gmkca1993@gmail.com , which according to the petitioner, is no more registered for the PAN No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner, for the first time, a notice under Section 148A (d) of the Act, 1961 came into the notice of the petitioner only after the final order under section 148 of the Act, 1961 along with the notice under Section 148 had already been issued. Further, it was only after the receipt of notice under Section 142 by the petitioner on 12.102023, now the petitioner could find out in the hindsight about the issuance of notices under Section 148A of the Income tax Act to them. (8) In the aforesaid background, it has been stated by the petitioner that after getting information with respect to re-assessment proceedings initiated against the petitioner under Sections 147/148 of the Act, 1961, the petitioner also came to know a notice under Section 148A(b) dated 07.03.2023 was issued to the petitioner, suggesting that income chargeable to tax for the assessment year 2019-20 had escaped assessment within the meaning of Section 147 of the Act, 1961 and called upon the petitioner to show cause as to why notice under Section 148 of the Act, 1961 be not issued. The basis for reopening was the information, which reads as under:- As per information in department data base, you have made followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 148 of the Act provides the right of hearing to the assessee by serving him a show cause notice. Thereafter, the Clause (c) of Section 148 of the Act, 1961 mandates the assessing authority for consideration of reply submitted by the assessee and thereafter the final order/ decision with respect to the finding that whether the case in hand is fit case for issuing notice under section 148 or not be passed is provided under clause (d) of Section 148 of the Act, 1961. In order to complete this entire procedure, the service of notice/procedure for service is provided under Section 144B of the Act, 1961. According to the learned Counsel, Section 144B of the Act, 1961 was also inserted by the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act 2020 w.e.f. 1.4.2021. This section provides that after 1.4.2021, all the assessment, reassessment or re-computation under the Act, 1961 shall be made in a faceless manner. The amended provisions entail that every notice or order or any other electronic communication shall be delivered to the addressee, being the assesse, by way of (i) placing an authenticated copy thereof in the assessee s registered account; or (b) send ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t substantial safe-guard has been provided under Section 148A of the Act, 1961 itself for service of notice to an assesse, which was duly followed in the present case. It has been contended by the learned counsel that notice under Section 148A(b) has been issued to the petitioner on 07.03.2023 by the jurisdictional assessing officer by uploading the same on the income tax e-filing portal of the petitioner and also intimated on the registered email id available in the database of the department, which is gmkca1993@gmail.com, through an automated system and which email is still reflecting as the email id of the assesse on the e-filing portal. Thus, it has been submitted that, since no response was submitted within the time as provided in the notice under Section 148A (b) of the Act, 1961, there was nothing wrong on the part of the Assessing Officer to pass an order under Section 148A(d) of the Act, 1961 dated 26.03.2023, which again was served in the same manner, by uploading on the income tax e-filing portal as well as through an automated system to the registered email id as available in the database of the department. (15) The learned Counsel has emphatically stressed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner. According to him, inspite of the updation of the web portal of the IT Department from the Assessment Year 2020-21 till date, if the correct information has not been picked by the jurisdictional Assessing Officer from the profile account of the petitioner, then it was a mistake committed by the respondent No.2 and 3 and the petitioner cannot be faulted. (18) Having scrutinized the rival submission of the parties and going through the record available before this Court in the instant writ petition, this Court is of the view that there is no denial of the fact that there exists two email ID of the petitioner-Company. The petitioner termed email ID: gmkca1993@gmail.com, as the earlier email ID having been used till 2019 and email ID: taxmohit56@gmail.com, has been termed as the present Email ID having been in operational after the year 2019. Although, the respondents have not denied the email ID: taxmohit56@gmail.com, however, they have contended that email ID: gmkca1993@gmail.com continues to be the registered email ID of the petitioner. The respondents have also not denied the fact that the notice under Section 148A (b) of the Act, 1961 dated 07.03.2023 and the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into action. No doubt, all the sub-clauses are alternative to each other and each of them indicate independent mechanism for determination of the registered email address, but the Court cannot be oblivious to the fact that sub-clause (vi) has been inserted by the legislature as a residual provision to determine the registered email address, when the registered email address of the assessee cannot be determined by the mechanism as provided from sub-clauses (i) to (v). Thus, if the registered email address of the assessee cannot be determined from (a) e-filing account of the addressee registered in designated portal or (b) from the last income tax return furnished, or (c) from the permanent Account number data base relating to the addressee or (d) from the official website of the Ministry of corporate affairs, etc. then only the authority may resort to any e-mail address made available by the assessee. Further, the word available is of significance as it records a positive action on the part of the assessee in making available the e-mail ID, so that the same may be construed as the registered email ID of the assessee. (20) As far as the present case is concerned, it has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al from the ITAT (Income Tax Appellate Tribunal), which was challenged on similar grounds. The Division Bench after recording the contention of the parties, not only dismissed the appeal of the department, but also held in the said judgment reported as Commissioner of Income Tax (Central-1) Vs Chetan Gupta : 382 ITR 613, inter-alia that 46. To summarize the conclusions: (i) Under Section 148 of the Act, the issue of notice to the Assessee and service of such notice upon the Assessee are jurisdictional requirements that must be mandatorily complied with. They are not mere procedural requirements. (ii) For the AO to exercise jurisdiction to reopen an assessment, notice under Section 148 (1) has to be mandatorily issued to the Assessee. Further the AO cannot complete the reassessment without service of the notice so issued upon the Assessee in accordance with Section 282 (1) of the Act read with Order V Rule 12 CPC and Order III Rule 6 CPC. (iii) Although there is change in the scheme of Sections 147, 148 and 149 of the Act from the corresponding Section 34 of the 1922 Act, the legal requirement of service of notice upon the Assessee in terms of Section 148 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at the last known address. It is evident that though the respondents had the new address of the petitioner as evinced from the ITR filed on 10th January 2021, the respondents chose to send the notice to their old address. We also find no averment or proof of the service of notice dated 20th March 2022 on the petitioner in respondent s affidavit in reply dated 14th November 2022. The cascading effect of non-service was the petitioner did not get an opportunity to respond to the notice. Consequently, the notice dated 20th March 2022 and the proceedings thereafter are void. Apropos section 151(ii) of the Act the sanction from the PCCIT ought to have been taken when order was sought to be passed beyond the period of three years i.e. beyond 31st March 2022 on 5th April 2022. Consequently, the notice dated 20th March 2022 and order dated 5th April 2022 deserves to be set aside on account of jurisdictional error i.e. for want of service and consequently, for non-compliance with the provisions of the Act. (24) Further in the judgment passed in Lok Developers Vs Deputy Commissioner of Income Tax Circle (Writ Petition No 1983/2022), wherein the issue before the Bombay High Court ..... 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