TaxTMI 
TaxTMI 
2013 (11) TMI 1236
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.... 1999- 2000, 2000-01, 2001-02, 2003-04, -do- 14.02. 2011 13 to 16 165 to 168(Asr)/ 2011 -do- 2002-03, 2004-05, 2005-06 & 2006- 07 -do- 14.03. 2011 17 to 19 145, 158, 159 (Asr)2011 M/s. Govind Impex Pvt. Ltd Jammu 1999- 2000, 2000-01 & 2001- 02 -do- 14.02. 2011 20 to 24 169, 211, 212, 170 & 213 (Asr)/2011 -do- 2003-04, 2002-03, 2004-05, 2005-06 & 2006- 07 -do- 14.03. 2011 2. In the case of Goodfaith, Construction (P) Ltd; Jammu the assessee has raised following common grounds in all the appeals: "1. That the Ld. CIT(A), Jammu has grossly erred in upholding the order passed by the Assessing Officer which is illegal, arbitrary and contrary to facts. 2. That the Ld. CIT(A), Jammu has grossly erred in rejecting the contention of the assessee regarding illegal service of notice u/s 148 dated 28.03.2006 by affixture in the first instance and in ignoring the provisions of order 5 Rule 20 of Civil Procedure Code. 3. That the remand report dated 30.09.2010 given by the Assessing Officer and reproduced in the appellate order was never confronted to the assessee by Ld. CIT(A), Jammu. 4. That the order passed by Ld. CIT(....
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....fficer and reproduced in the appellate order was never confronted to the assessee by Ld. CIT(A), Jammu. 4. That the order passed by Ld. CIT(A), Jammu is perverse as the findings given by him on the issue of "illegal service of notice u/s 148 are based on facts contrary to evidence on record. 5. That the Ld. CIT(A), Jammu has grossly erred in relyng upon the decision of Yogesh Kumar & Sons (HUF) 115 TTJ 696 (Asr) and ignoring the direct decisions of Punjab & Haryana High Court in the case of CIT vs. Avi Oil India Ltd. reported at 323 ITR 242 (P & H). 6. That the Ld. CIT(A) Jammu has completely misdirected himself in not appreciating that the proceedings for A.Y. 1999- 2000 had never traveled to ITAT, Amritsar Bench and that he was passing the first appellate order. 7. That the Ld. CIT(A), Jammu has grossly erred in rejecting the application of the assessee to place additional evidence on record regarding specific business activity having been carried out by the assessee. 8. That the Ld. CIT(A), Jammu has grossly erred in confirming the action of the A.O. in invoking proceedings u/s 148 without any new facts having been brought on record and acting merely on change of ....
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....ction of the A.O. in invoking proceedings u/s 148 without any new facts having been brought on record and acting merely on change of opinion and direction of superior officers. 9. That the Ld. CIT(A), Jammu has grossly erred in not appreciating the doctrine of resjudicata applicable to assessee because there was no change of facts or law with regard to nature of the income as "Business Income" as in past asstt. years. 10 That the Ld. CIT(A), Jammu has grossly erred in confirming the order of the A.O. in departing from the principle of consistency of accepted history of the assessee, which is contrary to several decisions of Supreme Court. 11. That the Ld. CIT(A), Jammu has grossly erred in not allowing House Tax & Business Expenses claimed by the assessee company incurred in order to maintain its assets and its status as a company." 5. First of all, we take up appeal of the assessee in the case of M/s. Goodfaith Construction (P) Ltd; Jammu, in ITA No.141(Asr)/2011 for the assessment year 1999-2000. Since the facts in the present appeal are identical to the facts in other appeals of the same assessee for different years as well as other appeals of other assessees for all....
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....ten submissions of the assessee are part of the order of CIT(A) at page 3 to 21. The Ld. CIT(A) observed that written submissions and the arguments of the assessee are more or less comprises of the following: i. The first contention raised is technical/legal in nature that the service of notice in the first place through affixture was not a valid service hence the assessment was illegal ( this plea is raised for the first time in this second innings). Certain case laws are filed in support. ii. The assessee is neither an owner of the property nor a deemed owner of the property nor a deemed owner as per section 27(iiib) of the Act refer with 269UA(f) of the Act. iii. The deptt. in the past has accepted the stands of the assessee even in assessments made u/s 143(3) of Income-tax Act, 1961 and hence, rule of consistency demands that no departure is to be made." 8. Vide para 4(b), the Ld. CIT(A) observed that the contention No.1 as mentioned hereinabove has been raised for the first time during the entire proceedings that too only on 25.08.2010 which was never before the ITAT and there was no occasion to adjudicate the same by the ITAT. The relevant findings of the CIT(A) i....
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....tion recorded by the A.O. 4k. It is decided in following cases that service of notice by RPAD which has not received back unserved, raises the presumption of the service of notice on the assessee: i) CIT vs. Vins Overseas India Ltd. 305 ITR 320 (Del) ii) CIT vs. Yawce Industries Ltd. 306 ITR 309 (Del) iii) CIT vs. Madhsy Films (P) Ltd 301 ITR 69 (Del) iv) CIT vs. Shanker Lal Ved Parkash 300 ITR 243 (Del) No rebuttal to the above contention brought out by A.O. has been raised by the assessee, instead the assessee had replied to the AO as reported in the above referred report acknowledging the service of notice as per letter of assessee dated 28.05.2006 and implied by subsequent conduct. The conduct of the assessee throughout has been to participate in the assessment proceedings, appellate proceedings before the CIT(A) and thereafter before Hon'ble ITAT and in this first innings such contention was never raised and that's why the directions of ITAT which are specific and directory don't say anything on this. Having said the above, the most important issue issue is that whether CIT(A) can travel beyond the directions of ITAT? In the present case, the directions of th....
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....o do if such a question is raised for the first time before the appellate authority. Of course, there can be no total bar on such question being allowed, if interest of justice so requires. In National Thermal's case (supra) it has not been laid down that in every case a question of fact can be mechanically allowed to be raised for the first time. The Madhya Pradesh High Court in CIT vs. Premium Capital Market & Investment Ltd. (2005) 275 ITR 260 (MP) held that question of validity of notice may not be allowed to be raised for the first time in appeal. Subsequent legislative amendment adding s. 292B supports this principle. The question "has, thus, to be answered against the assessee." 4q. Similar issue was decided by Hon'ble High Courts of Calcutta in case of M/s. Mukti Properties (P) Ltd. reported in 50-DTR judgments, passed on 11.02.2011 as under: "Appeal (High Court) Scope - Issue not raised before authorities below assessee did not agitate the issue of jurisdiction of AO to initiate the reassessment proceedings before any authority below. Moreover, assessee itself invited the AO and the CIT(A) to decide the matter on merits waiving its right to question the validity and ....
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....of original lease deed and the addendum, the assessee need not to have any concurrence of Mrs. Ranjit Kaur, the landlady. She is not a signatory to their deed. The lease was 9 years term. Renewal for 9 more years at the option of the bank." 11. The Ld. CIT(A) after discussing the contention of the assessee , facts on record and additional evidence filed by both sides, pleas of the assessee as to consistency in proceedings, arguments of the assessee and the case laws relied upon , dismissed the appeal of the assessee by confirming the action of the A.O. The said findings are available at pages 32 to 39 of CIT(A)'s order, which for the sake of convenience are reproduced as under: " It is abundantly clear from the above that by way of entering into lease deed dated 16.01.1991 the assessee companies got the lease for 5 years subject to renewal at their option for 3 more successive terms. Alongside by entering into a sub-letting deed with M/s. ANZ Grindlays Bank for 9 years and extendable to 9 further years, in effect they exercised their right for extension/renewal which was to be done without the consent of the landlady. The addendum signed on 20.11.1991 has further expanded the....
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....1 of 2006 in case of M/s. Govind Impex (P) Ltd. has been decided on 07.12.2010 are reproduced as under: "The rival submissions necessitate examination of Section 269UA(f)(i) of the Act, particularly its explanation, same reads as follows: (i) in relation to any immovable property referred to in sub-clause (i) of clause (d), means transfer of such property by way of sale or exchange or lease for a terms of not less than twelve years, and includes allowing the possession of such property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882 (4 of 1882) Explanation - For the purposes of this sub-clause, a lease which provides for the extension of the term thereof by a further term or terms shall be deemed to be a lease for a term of not less than twelve years, if the aggregate of the term for which such lease is 6 to be granted and the further term or terms for which it can be so extended is not less than twelve years; 6. On a plain reading of the explanation aforesaid it is evident that a lease which provides for the extension of the term thereof by a further term it shall be deemed to be a....
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....te providing for penal prosecution has to be construed strictly. He refers to Clause 12 aforesaid and contends that it shall govern the field. Mr. Bhatt submits that it is Clause 1 of the lease deed which shall govern the issue. We do not have the slightest hesitation in accepting the broad submission of Mr. Salve that Penal statute which make an act a penal offence or impose penalty is to be strictly construed and if two views are possible, one favourable to the citizen is to be ordinarily preferred but this principle has no application in the facts of the present case. There is no serious dispute in regard to the interpretation of explanation to Section 269UA(f) of the Act and in fact, we are proceeding on an assumption that it will cover only such cases where exists provision for extension in lease deed. In our opinion, what we are required to consider is the terms and conditions of lease. The terms of lease are not to be interpreted following strict rules of construction. One term of the lease cannot be taken into consideration in isolation. Entire document in totality has to be seen to decipher the terms and conditions of lease. Here in the present case, Clause 1 in no uncerta....
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....orporation is admirably stated by Lord Esher, M.R. : 'If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act as if they had had been actually written in it with the pen, or printed in it'.": 4x. The clause (f) of section 269UA is incorporated in section 27(iii)(b) and in view of the above order of Hon'ble Supreme Court it is immaterial whether section 269UA(f) is no more in operation. It's alive and kicking in section 27(iii)(b) of I.T. Act which is there for the purpose of section 22 to 26. Section 27(iii)(b) of I.T. Act: a person who acquires any rights (excluding any rights by way of a lease from month to month or for a period not exceeding one year) in or with respect to any building or part thereof, by virtue of any such transaction as is referred to in clause (f) of section 269UA, shall be deemed to be the owner of that building or part thereof;] And clause (f) of section 269UA reads. "f) "transfer" "(i) in relation to any immovable property referred to in sub-clause (i) of clause (d), means transfer of such property by way of sale or ....
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....l of assessee by my ld. predecessor. The assessee has filed a lot number of case laws in its support to contend that on the issue of consistency as well as on merits it had a strong case. 4ab. The jurisdictional ITAT, Amritsar in case of ITO vs. Goverdhan Dass 20 ITD 681 has held that ' an erroneous view in law could not be allowed to be perpetuated on the ground of consistency. 4ac. Here it is quite clear that in view of the decision of Hon'ble Supreme Court in assessee's own case, holding it to be 'deemed owner' and thus liable to be assessed under the head income from house property has undisputedly established that the view taken earlier was an erroneous view and had to be rejected. It is well settled that rule of 'resjudicata' does not apply to income tax proceedings. It is true that certain weightage is given by courts to the consistency so that a settled issue is not unsettled by a change of opinion or approach. This case is different because the view taken earlier ( if a considered view was taken or not it is also to be discussed in brief in this order), is rendered legally not tenable on the basis of factual position, as held by the Hon'ble Supreme Court in the case ....
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....14. The Ld. counsel for the assessee, Mr. Padam Bahl, CA argued that there is no question that notice has not been served. The question as to whether service by affixture can be made without adopting ordinary course of service of notice which if made is illegal and he relied upon the following decisions in this regard: i) CIT vs. Avi-Oil India (P) Ltd 323 ITR 242 (P&H) ii) DCIT vs. K.G.Singhania 29 DTR 289 iii) CIT vs. Avtar Singh 304 ITR 333 (P&H) iv) Arun Lal vs. ACIT 126 TJ (Agra ) (TM) 346 v) Kuber Tobacco Products (P) Ltd vs. DCIT 120 TTJ (Del) (SB) 577 Therefore, notice issued and served u/s 148 is bad in law and reassessment proceedings are liable to be quashed. 15. On the query from the Bench, the ld. counsel for the assessee replied and conceded that there is no dispute that the assessee did not raise any legal objection w.r.t. service of notice either by affixture or by ordinary course during assessment proceedings before the A.O. and the assessee participated in the reassessment proceedings. 16. The Ld. counsel for the assessee also argued that there is a change of opinion while recording the reasons by the AO in the present case and on this accou....
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....04 (Cal.) 19.1. Such expenses which are covered by the above decisions are annexed at page 48 of the paper book, year-wise and therefore, are allowable against rent received and interest income. 20. He further argued without prejudice to the arguments made hereinabove that the ld. CIT(A) has wrongly mentioned that the A.O. has allowed deduction of Municipal Taxes in the order passed by the AO u/s 154 of the Act, which in fact, has not been allowed in certain years. 21. The Ld. DR, Mr. Tarsem Lal, on the other hand, argued that the ld. counsel for the assessee, Mr. Padam Bahl, CA has conceded and also arise from the record that assessee has responded to the service of notice served on Delhi address which was made in the ordinary course and has participated in the assessment proceedings. No objection with regard to the issue or service of notice has been taken in the assessment proceedings and in view of settled law the assessee's grounds are liable to be dismissed. 22. As regards the change of opinion, the Ld. DR relied upon the decision of Hon'ble Punjab & Haryana High Court in the case of Sewak Ram vs. ITO reported in (2010) 236 CTR 462 dated 7th October, 2010 and the ....
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....so at para 2.1 of the reassessment order dated 22.12.2006 after which the objections of the assessee has been disposed off on 29.11.2006 in para 1.3 and thereafter subsequently in para 4.1 on 8.12.2006, the assessee has again duly participated in the proceedings which is a sufficient material having bearing on the legal grounds raised that challenge is to the application of the jurisdiction whereas the fundamental challenge to the assumption of jurisdiction is neither addressed nor contested and thus having pleaded the assessment to be treated as unsustainable in law is unwarranted. Only on this account, legal grounds of the assessee with regard to the challenge of the legality of continuation of reassessment as a consequence of issuance and service of notice u/s 148 of the Act are dismissed. The said issue is covered by the decision of ITAT, Amritsar Bench in the case of ITO vs. Smt. Promila Gupta in ITA No.184(Asr)/2013 dated 16.07.2013 in which on identical issue the decision of Hon'ble Punjab & Haryana High Court and others which have been considered and the relevant findings given in the case of Smt. Promila Gupta (supra) are reproduced for the sake of convenience as under: ....
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....he provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive." In the same case, Lord Pearce said "Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or. things which are conditions precedent to the tribunal having any jurisdiction to embark on an ,enquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or, in the intervening stage while engaged on a proper enquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which the Parliament did direct. Any of these things would ....
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....aised at the earlier possible opportunity. Thus, there is no reason for coming forward for the assessee waiting for such long for raising said objection (legal ground) after completion of reassessment. Another issue to be addressed is that challenge is not to the continuation of proceedings by the A.O. whereas the purpose of issuance notice u/s 143(2) of the Act cannot be lost sight and we are supported by the principle of law as noticed in the case of Dhirendra Nath Goari ( In CA No.85 of 1961), Subal Chandra Nath Saha And Others ( In CA No.86 of 1961) vs. Sudhir Chandra Ghosh And Others (1964) 6 SCR 1001 : AIR 1964 SC 1300. In para-7 where the difference between a 'nullity' and an 'irregularity' has been noticed, which has been extracted hereinbelow: "Even then, the question arises whether an act done in breach of the mandatory provision is per force a nullity. In Ashutosh Sikdar v. Behari Lal Kirtania(1), Mookerjee, J., after referring to Macnamara on "Nullity and Irregulari- ties", observed : "no hard and fast line can be drawn between a nullity and an irregularity; but this much is clear, that an irregularity is a deviation from a rule of law which does not take away the....
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.... the present kind of grievance is 'merely an error within jurisdiction', which can be determined only by construing the empowering statute, which will give guidance on the subject and in the present case. Further we are supported by the decision of ACIT vs. Hotel Blue Moon decided by the Hon'ble Supreme Court reported in (2010) 321 ITR 362 dated 2nd Feb., 2010. Thus, the purpose is to give opportunity to the assessee for bringing to the knowledge the proceedings being undertaken in accordance with law which too has been done by the A.O. The relevant part of the decision in the case of ACIT & Anr. Vs. Hotel Blue Moon reported in (2010) 321 ITR 362 (SC) in para 15 is reproduced as under: "But s. 143(2) itself becomes necessary only where it becomes necessary to check the return, so that where block return conforms to the undisclosed income inferred by the authorities, there is no reason, why the authorities should issue notice under s. 143(2). However, if an assessment is to be completed under s. 143(3) r/w s. 158BC, notice under s. 143(2) should be issued within one year from the date of filing of block return. Omission on the part of the assessing authority to issue notice under....
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....er s. 37(2). Reading the two sections together it merely means that the methodology prescribed for carrying out the search provided in s. 165 has to be generally followed. The expression "so far as may be" has always been construed to mean that those provisions may be generally followed to the extent possible. The learned counsel for the respondent has brought to our notice the observations made by this Court in the case of Maganlal v. Jaiswal Industries & Ors. [1989] 4 SCC 344, wherein this Court while dealing with the scope and import of the expression "as far as practicable" has stated "without anything more the expression 'as far as possible' will mean that the manner provided in the code for attachment or sale of property in execution of a decree shall be applicable in its entirety except such provision therein which may not be practicable to be applied." 13. The Ld. counsel for the assessee has strongly relied upon the decision in the case of CIT vs. Cebon India Ltd. (2012) 347 ITR 583, Indo Swiss Exports Ltd; Chennai vs. Department of Income Tax dated 21st June, 2012 (ITAT, Chennai), decision of Hon'ble Delhi High Court in the case of Alpine Electronics Asia PTE Ltd. vs. ....
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.... 213 reported in 202 Taxman 213 (placed on record) pertaining to assessment year 2002-03 wherein the question falling consideration is the same as raised before this Bench in the present appeal, which is extracted hereinbelow: "Whether on the facts and circumstances of the case, the Tribunal was right in law in concurring with the finding of CIT (A) in holding the assessment bad in law, made pursuant to the issue of notice u/s 148 without appreciating that no prejudice was caused to the assessee by non-issuance of notice u/s 143(2), particularly, when the assessee was participating in the assessment proceeding without objecting to the assessment proceedings on this account at the assessment stage?" 16. The Hon'ble High Court noticing the provisions of law has answered the question against the assessee and in favour of the revenue with the direction of remanding the matter to the Tribunal for decision on merit afresh in accordance with law. The relevant portion of the judgment of the Hon'ble Punjab & Haryana High Court in the case of CIT vs. Ram Narain Bansal (supra) is reproduced hereinbelow for the sake of convenience as under: 9. Learned counsel for the Revenue submitted....
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....g contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment." A presumption has been raised under the said provision relating to service of notice upon the assessee in respect of assessment or reassessment proceedings. According to this provision, where an assessee appears in any proceedings or cooperates in any enquiry relating to assessment or reassessment proceedings, it shall be presumed that the assessee has been validly served and it shall not be open to the assessee to object that the notice was not served upon him or was not served in time or was served upon him in an improper manner. However, an exception to the aforesaid presumption has been made in a case where such objection has been raised before completion of assessment or reassessment. The provision has been made effective from 1.4.2008 and therefore, shall apply to all pending proceedings. The Central Board of Direct Taxes issued the circular No.1 of 2009 dated 27 March, 2009 (2009) 310 ITR (St.) 42 giving explanatory notes on the provisions relating to direct taxes contained in Finance Act, 2008. Clause 42.7 (at page 86 of the r....
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.... of CIT vs. AVI-Oil India P. Ltd. (2010) 323 ITR 242 (P&H) and held that certain principles of law for which the relevant part is extracted hereinbelow: "The grievance of the petitioner is that such notice was not served on the assessee till 30.09.2010 i.e. the last date of limitation for the initiation of proceedings for the Assessment Year 2009-10. The relevant provisions of the Act i.e. Section 143(2) of the Act read as under: "143(2) Where a return has been furnished under Section 139, or in response to a notice under sub-section (1) of Section 142, the Assessing Officer shall - (ii) notwithstanding anything contained in clause (i), if he considers it necessary or expedient to ensure that the assessee has not understated the income or has not been computed excessive loss or has not under-paid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced, any evidence on which the assessee may rely in support of the return:- Provided that no notice under clause (ii) shall be served on the assessee after the expiry of six months from the end of the financial ye....
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.... authority or delivery". Section 27 of the General Clauses Act (Act X of 1897) reads thus: "27. Meaning of service by post - Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre- paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." It would be seen from this provision that Parliament used the words "serve", "give" and "send" as inter-changeable words. So too, in Sections 553, 554 and 555 of the Calcutta Municipal Act, 1951, the two expressions "issued to" or "served upon" are used as equivalent expressions. In the legislative practice of our country the said two expressions are sometimes used to convey the same idea. In other words, the expression "issued" is used in a limited as well as in a wider sense. (emphasis s....
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....order will cease with the lapse of one year from the date of the order by the subordinate authority and the ratio of date of the knowledge of the order applicable to an aggrieved party is not applicable for the purpose of exercising suo motu power. Similarly in another decision reported in Viswanathan Chettiar v. Commr. of Income Tax, Madras, 25 ITR 79 Mad, construing the time limit for completion of an assessment under Section 34(2) of the Income Tax Act, 1922, which provided that it shall be made "within four years from the end of the year in which the income, profit and gains were first assessable", it was held that the time limit of four years for exercise of the power should be calculated with reference to the date on which the assessment or reassessment was made and not the date on which such assessment or reassessment order made under Section 34(2) was served on the assessee. 12. It may be seen, therefore, that, if an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed therefore. The order or decision of such authority comes into force or becomes operative or beco....
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....ch such power was exercised by making an order are the relevant dates for determining the limitation. The ratio of this distinction may also be founded on the principle that the Government is bound by the proceedings of its officers but persons affected are not concluded by the decision." The said principle of the issue of a notice or communication has also come up for consideration before the Hon'ble Supreme Court in the context of the provisions of Section 4 of the Contract Act, 1872. It has been held that the moment the proposer puts his proposal in the course of transmission, it is complete as against the acceptor i.e. addressee. Therefore, the moment the notice is signed and put in the course of transmission by the department, the notice is deemed to be served as the communication is out of the proposer. It has been so held by the Hon'ble Supreme Court in Bhagwandas Goverdhandas Kedia v. Girdharilal Parshottamdas & Co., AIR 1966 SC 543, wherein it has been held to the following effect: "By the second clause of Section 4, the communication of an acceptance is complete as against the proposer, when it is put in a course of transmission to him, so as to be out of the power ....
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...., perhaps, become necessary because of the consequences which the decision in The State of Punjab v. Amar Singh Harika AIR 1966 SC 1313 contemplates. But such consequences would not occur in the case of an officer who has proceeded on leave and against whom an order of suspension is passed because in his case there is no question of his doing any act or passing any order and such act or order being challenged as invalid." Learned counsel for the petitioner has also relied upon the judgment of Hon'ble Supreme Court in Assistant Commissioner of Income Tax and another Vs. Hotel Blue Moon (2010) 3 SCC 259. But the said judgment does not provide any help to the argument raised. In fact, in para 7 of the said judgment, it has been observed that the Assessing Officer has to issue notice under Section 143 (2) within the prescribed time-limit to make the assessee aware that his return has been selected for scrutiny assessment. In AVI-OIL India P. Ltd. case (supra), the provisions of the Contract Act, the judgments of the Hon'ble Supreme Court were not brought to the notice of the Bench; therefore, the Bench has taken a view on the literal meaning of word expression "serve". In view of....
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.... (iv) In a given case when the principles of natural justice are stated to have been violated it is open to the Appellate Authority in appropriate cases to set aside the order and require the assessing officer to decide the case denovo." In view of the said judgment, the date of receipt of notice by the addressee is not relevant to determine, as to whether the notice has been issued within the prescribed period of limitation. The expression serve means the date of issue of notice. The date of receipt of notice cannot be left to be undetermined dependent upon the will of the addressee. Therefore, to bring certainly and to avoid attempts of the addressee to evade the process of receipt of notice, the purpose of the statute will be better served, if the date of issue of notice is considered as compliance of the requirement of proviso to Section 143(2) of the Act. In fact that is the only conclusion that can be arrived at to the expression 'serve" appearing in Section 143(2) of the Act. Consequently, we do not find any merit in the present petition. The same is dismissed." 26. Accordingly present issue being identical and therefore, legal grounds raised by the assessee as m....
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....sion of term and in view thereof, we do not consider it expedient to examine the judgment relied on by Mr. Salve. In the case in hand, the lease was for a period of nine years and the question, therefore, is as to whether the same was extendable for a further period of nine years so as to make it for not less than twelve years. To answer this one is required to refer to the lease deed and Clauses 1 and 12 thereof which are relevant for the purpose, same read as follows: "That the Lessors of the First Part have agreed to lease out to the Lessee of the Second Part the demised premises as aforesaid which are being used for commercial purposes at present namely on the lower ground floor/basement, ground floor/upper ground floor, first floor, second floor and the terrace of the building known as B-68, Greater Kailash-I, New Delhi - 110048, and clearly delineated in green outlines in the site plan annexed herewith for a period of nine years, extendable purely at the discretion and option of the Lessee of the Second Part for a further period of nine years, commencing from the date when the possession of the premises is handed over i.e. 1.06.1991 and ending on the last date when the per....
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.... is for a period of not less than twelve years. Once it is held so the explanation to Section 269UA(f)(i) is clearly attracted. We are of the opinion that the High Court is right in observing that "on a conjoint reading of paras 1 and 12 of the lease deed, the lessor intended the lease to last for 18 years and further the lessor could not have refused to renew/extend the lease after first term if the lessee complied with the conditions." 28. On the change of opinion, the Hon'ble Punjab & Haryana High Court in the case of Tilak Raj Bedi v. JCIT reported in (2009) 319 ITR 385, wherein the question falling for consideration was regarding reopening of the assessment on the basis of change of opinion and having noticed pleadings of the assessee, the appeal was dismissed. The relevant findings given in para 8 of the judgment are reproduced as under: "After hearing learned counsel for the parties, we are of the view that no substantial question of law arises as the impugned judgment of the Tribunal is consistent with the settled law on the point. The power of reassessment can be validly exercised if satisfaction is arrived at after following due procedure that income had escaped ass....
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....t can be initiated even if there is disclosure in the return if without considering the particulars of the return, processing is done under Section 143(1) or assessment is made under Section 143(3). No doubt, mere change of opinion by itself is not a ground for reassessment as held in the judgments relied upon on behalf of the assessee but if there are reasons to believe that tax has escaped, reassessment is permissible. Reasons can be even on the basis of particulars of the return without any new material. Even if proceedings under Section 143(2) are not taken, reassessment proceedings can be taken. 7. In the present case, the CIT (A) set aside the proceedingsby wrongly holding that reassessment could not be initiated on the basisof material already disclosed in the return without going into thecorrectness of the reasons. 8. We find, prima facie, that the reasons for reassessment are not irrelevant. In any case, the same could have been gone into by the CIT (A) before reassessment was set aside as rightly held by the Tribunal. The judgments relied upon by learned counsel for the assessee, thus, have no applicability in the present case. In these circumstances, the view taken....