TaxTMI 
TaxTMI 
2017 (9) TMI 741
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....er had filed the return of income on 10.9.2011 declaring the total income of Rs. 1.72 lacs. The assessment of the petitioner was reopened by issuing notice under section 148 of the Income Tax Act, 1961 ("the Act" for short) on the ground that during the course of survey at the business premises of one Baldevbhai Bhikhabhai Patel, incriminating documents were found in relation to purchase and sale of lands situated at Surat which included the petitioner's land. In response to the notice, the petitioner filed the return of income on 23.2.2015 declaring the total income of Rs. 1.40 crores (rounded off). The Assessing Officer passed the order of assessment under section 143(3) of the Act read with section 147 of the Act on 31.3.2015. He also initiated penalty proceedings under section 271(1)(c) of the Act against the petitioner for furnishing inaccurate particulars of his income. The Assessing Officer passed the order of penalty on 28.9.2015 levying penalty at the rate of 100% of the tax sought to be evaded. 4. The petitioner did not challenge the order of assessment but filed appeal against the order of penalty before the appellate Commissioner on 26.10.2015. When this appeal was....
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....titioner. The appellate Commissioner therefore, could not have disposed of the appeal without hearing the petitioner. In this context, the counsel took us through section 250 of the Act pertaining to the procedure in appeals before the appellate Commissioner to contend that the true meaning of the expression "shall give notice of the same to the appellant" must mean serve the notice. The petitioner not having been served with the notice, this statutory requirement was not fulfilled. Counsel relied on the affidavit filed on behalf of the petitioner HUF declaring that such notices were never served on the petitioner or any person authorised by the petitioner. Our attention was drawn to various sections of the Act where in context of notices to be issued either by the department or to the department or in the context of intimations to be sent, the legislature had used expressions "issue", "give" and "serve" at different places. Counsel submitted that different expressions used in different situations must carry different connotations. In the context of requiring participation of the appellant before the appellate Commissioner the expression "to give notice" must carry the meaning "to ....
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.... 1.6.2016 and in such a case, the amount payable by the declarant would be the one provided in the Scheme and which in case of a penalty is prescribed as 25% of the minimum penalty leviable. Upon such a declaration being made by the assessee, the designated authority would process the same and determine the sum payable under the Scheme. If the application is granted, he may also grant immunity from prosecution and penalty as may be applicable. We are not concerned with the finer aspects of the Scheme. Only point to be noted is that the declaration with respect to any disputed tax can be made only concerning the tax arrears in respect of which appeal is pending before the Commissioner. 10. Concededly, the petitioner's appeal against the order of penalty came to be dismissed by the appellate Commissioner on 2.6.2016. When the petitioner therefore, filed the declaration before the designated authority on 21.12.2016, the appeal against the order of penalty was no longer pending before the appellate Commissioner. As long as this situation prevails, the order dated 3.1.2017 passed by the designated authority rejecting the petitioner's applications under the Scheme cannot be faul....
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.... was valid since on the date of the filing of the declaration, the appeal was already disposed of by the Commissioner. Affidavit dated 3.7.2017 came to be filed on behalf of the respondents pointing out that the notices were issued through speed post at the address provided by the petitioner in the appeal memo. Necessary documents that were dispatched have been annexed. Likewise, the order of the appellate authority was also communicated through the same mode at the same address. It is pointed out that in response to the petitioner's communication dated 27.1.2017, raising a grievance of non receipt of notice in the appellate order, the department had replied under a letter dated 31.1.2017 also by the same mode of communication at the same address which was duly received by the petitioner. 13. Section 246A of the Act provides for orders which are appealable before the Commissioner(Appeals). Section 249 provides for the form of appeal and limitation for filing the appeal. Section 250 of the Act lays down the procedure in appeal and reads as under : "Procedure in appeal. 250. (1) The Commissioner (Appeals) shall fix a day and place for the hearing of the appeal and shall give....
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....ought on his record, confirm, reduce, enhance or annul the assessment; (b) in an appeal against an order imposing a penalty, he may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty; (c) in any other case, he may pass such orders in the appeal as he thinks fit. (2) The Commissioner (Appeals) shall not enhance an assessment or a penalty or reduce the amount of refund unless the appellant has had a reasonable opportunity of showing cause against such enhancement or reduction. ExplanationIn disposing of an appeal, the Commissioner (Appeals) may consider and decide any matter arising out of the proceedings in which the order appealed against was passed, notwithstanding that such matter was not raised before the Commissioner (Appeals) by the appellant." 15. Under subsection( 1) of section 250, the Commissioner would fix a day and place for the hearing of the appeal and he shall give notice of the same to the appellant and to the Assessing Officer against whose order the appeal is preferred. As per subsection( 2) of section 250, the appellant in person or through an authorised representative and the Assessing Officer or his representat....
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....the process of deciding the appeal, the Commissioner may even enhance the assessment, only limitation being, as provided in subsection( 2) of section 251, such enhancement of assessment would not be done unless the appellant has been given reasonable opportunity of showing cause against such enhancement. 18. It therefore, cannot be gainsaid that the very purpose of giving notice under subsection( 1) of section 250 of the Act is to ensure a proper participation by the appellant assessee in the appeal proceedings and the notice is thus not a mere formality. Despite such statutory scheme of things, subsection( 1) of section 250 uses the expression "shall give notice" and falls short of using the otherwise oft repeated expression of "serve notice" used at many other places in the Act. Can the expression in be context of which it has been used be equated with service of notice, is undoubtedly an interesting question which in the present case we are not inclined to answer conclusively. This is so because of the following reasons. We have noticed that the Commissioner (Appeals) having issued two notices dated 22.3.2016 and 23.5.2016 to the assessee, proceeded to decide the matter exparte....