9911796707
TMI Blog2024 (2) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... oping and Managing hotels, motels, resorts, restaurants, cafes and other similar activities. (3) It is the case of the petitioner that for the purpose to achieve its business goal, the petitioner's company has entered into an agreement to sale/lease dated 18.10.2011 with one Jayveer Singh in respect of his property, namely, 'Deorhi Darwaza, Purna Mahal' situated at Khasra No. 1533 in Village Maharaj Nagar, District Mahoba, U.P. (hereinafter referred to as the 'property') in distress sale. By the aforesaid agreement for sale/lease deed dated 18.10.2011, the petitioner has also been given possession of the said property from the year 2011-12 onward. The petitioner has also paid the amount of the property as per the agreement for sale/lease deed to the owner of the property. According to the petitioner, the said agreement for sale/lease deed dated 18.10.2011 was exempted from payment of stamp duty in terms of U.P. Tax and Registration Adhiniyam, 2013 and as per Tourism Policy, 2017 of the State of U.P. However, ultimately, after receiving sale consideration of the said property, the owners of the said property had executed sale deed of the property in favour of the petitioner on 16.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntimation' from the department, hence the 'acknowledgment' is automated/ computer generated and does not contain any such secondary mail on record as claimed by the department. (7) Thus, it has been contended by the petitioner that on coming into the notice of the aforesaid proceeding with respect to some proceeding for the assessment year 2019-20, he immediately contacted his earlier Chartered Accountant, who was working with the petitioner's company till 2019 and requested him to scan through his mail ID [email protected] and it was only after confronting him about any notice or information from income-tax department with respect to the petitioner, the previous Chartered Accountant informed the petitioner about the notice under Section 148A and subsequent notice under Section 133 of the Act, 1961. The petitioner, thus, have submitted that although these notices were received on the earlier registered mail but it was not informed to the petitioner as the previous CA was not having any professional or personal relation with the Company. According to the petitioner, for the first time, a notice under Section 148A (d) of the Act, 1961 came into the notice of the petitioner only af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a notice under Section 148 of the Act, 1961 has also been issued on 29.03.2023, by which the Assessing Officer has proposed to assess or reassess the income for the assessment year 2019-20 and required the petitioner to file his return in the prescribed form. (10) Feeling aggrieved by the aforesaid order dated 26.03.2023 and notice dated 29.03.2023, the petitioner has filed the instant writ petition before this Court. (11) Heard Shri Manish Mishra, learned Counsel representing the petitioner and Shri Kushagra Dikshit, learned Counsel representing the respondents no.2 and 3. (12) Learned Counsel representing the petitioner has submitted that the Finance Act, 2021 has inserted a new chapter of enquiry and opportunity of hearing in reassessment proceedings and as such, Section 148A of the Act, 1961 has been inserted with effect from 01.04.2021. This section has been introduced with the legislative intent to provide opportunity of hearing to the assessee before issuing notice for re-assessment under section 148 of the Act. Clause (b) of Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not satisfy the same. The legal maxim sublato fundamento cadit opus, provided that in case the foundation is removed, the superstructure falls. In the present case, the impugned order under Section 148A(d) and the notice under Section 148 of the Act, 1961 has been passed on the premise that notice has been sent on the registered mail ID of the petitioner but he failed to respond the same. While it is evident from record that the notice has never been served on the registered e-mail address of the petitioner. Thus the order impugned has been passed on wrong foundation and, accordingly, having no value in the eyes of law. Thus, it has been prayed that the order dated 26.03.2023 passed by the assessing authority under Section 148A(d) of the Act, 1961 for the Assessment Year 2019-20 and all the consequential notices including the notice dated 29.03.2023 may be quashed. (14) Per contra, learned Counsel for the respondent No.2 and 3, explaining the elaborate provisions for issuance of notice for reopening of assessment, has argued that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner had been duly participating in the said proceedings and has infact also field his reply to the notice dated 12.10.2023 issued under Section 142 (1) of the Act, 1961 on 04.11.2023 and according to him, the grounds of non-service of the impugned notice/orders can be very well taken by the petitioner in the said proceedings and the said issue can also be considered by the assessing officer at the time of passing the Assessment Order. (17) In rejoinder, the learned counsel for the petitioner has denied the contention of the department and has submitted that at the time of issuance of notice on 07/03/2023, the e-mail ID [email protected] was the only mail registered on the database of the department against the PAN number of the petitioner company. The email sent by the Income Tax Business Application from the mail ID of ITO, Lucknow has been sent to the earlier mail ID [email protected] and the concerned officer never tried to find out what was the actual email registered on the online portal against the PAN of 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 informati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority or any person authorised by such authority" (19) From the aforesaid definition of registered e-mail address, this Court finds that there are several alternatives provided for considering any email address as a "registered e-mail address". It has been argued by the learned counsel for the respondents that the notice under Section148A(b) of the Act, 1961 had been sent to the petitioner on the available email ID on the portal of the Income Tax department, but the question is as to whether the said available email ID can be construed to be a registered email ID in view of the explanation (t) to Section 144B of the Act, 1961. Although it has been contended by the learned counsel for the respondents that the said e-mail address was the email ID made available by the assessee, so as to satisfy the sub-clause (vi) of the aforesaid definition, however, this Court is unable to countenance as to why the respondents without resorting to the various sub-clauses from (i) to (v) has pressed sub-clause (vi) 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of the assessee has to be understood in the context that before the issuance of the notice under section 148 of the Income Tax Act, the Assessing Officer is enjoined upon as per section 148A (d) of the Act, 1961 to decide, on the basis of material available on record including reply of assessee, whether or not it is a fit case to issue a notice under Section 148 of the Act, 1961, by passing an order. (22) In the present case, the notice under Section 148A(b) of the Act, 1961 has not been issued on the registered email address of the petitioner's company. However, as pointed out by the learned Counsel for the respondents that the said point was not raised by the petitioner in the re-assessment proceedings presently pending before the Assessing Officer and in a way has contended that the said issue stands waived by the petitioner. In this context, it would be profitable to quote the conclusion of a judgment passed by the Delhi High Court, wherein the Division Bench had examined an Appeal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the Delhi High Court in the case of CIT vs Eshaan Holding (P) Ltd. 5 upholding the view of the ITAT that if there is no valid service of notice under section 148, the reassessment proceedings are null and void as also the decision of the Punjab and Haryana High Court in the case of CIT vs Avtar Singh 6 which held that service of notice under section 148 is a condition precedent for making reassessment or re-computation under section 147 of the Act. 8. In our view, before issuing the notice under section 148A (b) it was imperative for the AO to have checked if there was a change of address. A condition precedent for any proceeding including a proceeding u/s. 148A, is a valid service of notice, lest it would be a jurisdictional error. With regard to, the first notice dated 20th March 2022, it is the case of the petitioner that they had not received any notice dated 20th March 2022 and the revenue contended that it was served through speed post 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 fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
