2025 (9) TMI 12 - AT - Income Tax

Reassessment quashed: Reopening invalid for failure of mandatory service and defective reasons under section 148

ITAT held the reassessment invalid and allowed the appeal, finding the AO failed to effect mandatory service of notice under section 148, did not consult ... Reopening of assessment - mandation of service of notice - HELD THAT:- First one being the address available in PAN database of the addressee. AO did not even consider the address available at the PAN database for proper service of notice. Second proviso to sub rule (2) of rule 127 provides that if the communication cannot be delivered to the address mentioned at sub rule (1), it can be delivered to the address available with the banking company, post office, insurance company, records of the Government, local authority or furnished in form 61, 61A. AO did not even choose to make any enquiry for proper and valid delivery of notice as per the law. It is settled proposition of law that the onus is on the Revenue to establish that proper service of notice has been affected u/s 148 of the Act which is a jurisdictional precondition to finalize the re-assessment. However, the revenue has failed to discharge its burden and assessee has established that at time of issuance of notice there was non application of mind. The notice was issued, but it seems that was a mere formality. Such issuance of notice, which when issued, is known to be not possible to reach the hands of assessee, cannot be considered to be even issued. Reasons to believe recorded by AO are factually incorrect and contains serious grave errors and are without any prior verification and shows complete non application of mind - AO assumed that the assessee does not have PAN and he did not file any of his return and therefore without going through the return of income of the assessee and without verifying the fact whether the income which in the opinion of AO has escaped assessment has actually escaped or not, he recorded reasons and issued notice, that too at incorrect address. He did not even care to go through the PAN database of the assessee and the records with the department. A co-ordinate bench was confronted with similar set of facts in the case of Hafizuddin Hazi [2022 (2) TMI 817 - ITAT DELHI] as the case was reopened on the factually incorrect premise that the assessee had not filed his return of income and therefore, the income has escaped assessment. Revenue has failed to discharge its burden and assessee has established that at time of issuance of notice there was non application of mind. The notice was issued, but it seems that was a mere formality. Such issuance of notice, which when issued, is known to be not possible to reach the hands of assessee, cannot be considered to be even issued. Thus, we are of the firm view that the AO had invoked his jurisdiction for reopening assessment u/s 147/148 of the Act on basis of incorrect facts and non application of mind and also AO failed to serve the mandatory notice as per law. Appeal of assessee allowed. 1. ISSUES PRESENTED AND CONSIDERED 1. Whether reopening of assessment under section 147 read with section 148 of the Income Tax Act is valid where notice under section 148 was issued but not served on the assessee at the correct/address updated in PAN/returns. 2. Whether reasons to believe recorded for reopening are valid where they contain factual inaccuracies, demonstrate non-application of mind and were recorded without verification of departmental records (PAN database and filed returns). 3. Whether reassessment finalized ex parte without proper service of notice and based on defective reasons to believe is vitiated and liable to be quashed. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Validity of reopening where notice under section 148 was not served at correct/updated address Legal framework: Reopening of assessment under section 147 is conditional upon issuance and service of notice under section 148(1); service must be effected in accordance with law (section 282(1), Rule 127 and relevant principles of service; Order V Rule 12 CPC/Order III Rule 6 CPC referenced by Courts). Precedent Treatment: Reliance on decisions of jurisdictional High Courts and Tribunals (as cited) establishing that issue and service of notice under section 148 are jurisdictional pre-conditions; onus lies on Revenue to prove proper service; mere issuance without proof of effective service is insufficient; reassessment completed without proper service is invalid and quashable. Interpretation and reasoning: The AO issued the section 148 notice to an address which was the very property alleged to have been sold, whereas the assessee had updated address details in subsequent returns and in the PAN database. Rule 127(2) prescribes priority of sources (PAN database, address in the return to which the communication relates, last return filed), which the AO failed to consult. The AO's conduct amounted to mechanical/ministerial issuance without attempts to access available databases or alternative sources listed in the rule; dispatch to an address that could not possibly reach the assessee (sold property) cannot be treated as effective service. The Revenue failed to discharge the burden of proving correct dispatch/service. Ratio vs. Obiter: Ratio - Service of notice under section 148 is a jurisdictional pre-condition; onus on Revenue to prove service; dispatch to incorrect address where address records show change vitiates jurisdiction. Obiter - Observations on practical impossibility of receipt when notice sent to sold property and requirement to consult alternate sources under proviso to Rule 127(2). Conclusion: Reopening under section 147/148 is invalid where notice was not served at the correct/updated address and Revenue did not discharge onus of proving effective service; the assessment so reopened is quashable. Issue 2: Validity of reasons to believe containing factual inaccuracies and lack of application of mind Legal framework: For valid exercise of jurisdiction under section 147/148, the AO must record 'reasons to believe' based on relevant materials and with application of mind; reasons must be factually accurate and not based on incorrect departmental records; Rule 127 and PAN/return records are relevant sources to verify factual position before recording reasons. Precedent Treatment: Courts have held reopening invalid where reasons to believe rest on incorrect premise (e.g., that return was not filed or PAN not available) when records demonstrate the contrary. Prior decisions quashing reassessment where reopening premised on wrong facts and no verification are followed. Interpretation and reasoning: Reasons to believe in the record misstated address, asserted absence of PAN and non-filing of returns despite available departmental records and filed returns evidencing changed address and PAN linkage. The AO did not verify PAN database or returns and accepted Non-PAN AIR information without perusal of available records. Such factual errors and failure to verify indicate non-application of mind; reopening therefore lacked the foundational factual basis required by law. Ratio vs. Obiter: Ratio - Reopening predicated on factually incorrect reasons and without verification is not in accordance with law and must be quashed. Obiter - Procedural steps (e.g., specific invocation of Rule 127 sources) that should have been taken before forming reasons. Conclusion: Reasons to believe were factually incorrect and recorded without application of mind; reopening based on such reasons is invalid and incapable of supporting reassessment. Issue 3: Effect of combined defects (non-service + defective reasons) on validity of reassessment and whether quashing is appropriate Legal framework: Jurisdictional defects (failure of service under section 148) and substantive defects in reasons to believe independently vitiate reopening; when jurisdiction is absent or reasons are unsupported, subsequent assessment under section 147/144 cannot stand. Precedent Treatment: Courts and Tribunals have consistently quashed reassessments where either mandatory service was not proved or reopening was based on incorrect facts/absence of application of mind; if reopening is quashed, merits of additions become academic. Interpretation and reasoning: Both jurisdictional defect (non-service at correct address despite records) and defect in recording reasons (factual inaccuracies, failure to consult PAN/returns) co-existed. Revenue failed to discharge onus on service and the AO failed to apply mind to verify material before forming reasons. Combined, these defects render the reassessment proceedings and ex-parte assessment order void-ab-initio. Ratio vs. Obiter: Ratio - Where mandatory service is not effected and reasons to believe are vitiated by factual errors/non-application of mind, reassessment must be quashed; consequent additions become academic. Obiter - Reference to COVID-19 related condonation of delay in filing appeals is procedural and not determinative of substantive issues. Conclusion: The reassessment finalized under sections 147/148/144 is quashed on account of both non-service of the section 148 notice at the correct address and materially defective reasons to believe; consequential additions are rendered academic.