TaxTMI 
TaxTMI 
2025 (4) TMI 673
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....olding it as Bad in Law, without jurisdiction for lack of service of notice u/s 143(2) on the Assessee. 3) Commissioner of Income Tax has erred in confirming the addition of Rs. 2,20,09,000/-u/s. 68 made by Assessing Officer. Appellant prays to delete the same as provisions of Sec.68 are not at all applicable to the Facts of the case. " 4) Commissioner of Income Tax (Appeals) has further erred in observing "The Claim u/s 54F @Rs.2,05,78,694/- Which is investment in residential house, is rejected because Transaction leading to Capital Gain itself is rejected and is treated as business income." Appellant prays for declaring claim of Long Term Capital Gain & u/s 54F is valid and allowed, And declare that order is Bad in Law, being without application of mind and violative of powers of CIT(A). 5) Commissioner of Income Tax (Appeals) has erred in not being Just & Fair, Appellant pray for relief accepting Returned Income. 6) Assessee denies liability to Interest u/s 234A, 234B, 234C etc. Prays to cancel the same. 7) Appellant prays to add, alter, amend, take additional grounds, submit additional evidence and / or dur....
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.... Act, 1961 by issuing notices under section 142(1) dated 17-08- 2015. The case was assigned to the undersigned vide Addl. CIT Range- 3, Pune's Order No.PN/Addl.CIT/R-3/Assign Order-1/2015-16/414 dated 05-08-2015. 3. The notice issued on 17-08-2015 was returned back with the remarks that the assessee is not in given address. The address of the assessee is 'Shri Dhanottam Vasant Lonkar, 268-A, Shivajinagar, Pune 411005' on which Notice u/s 143(2) was sent. xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx On perusal of the PAN data base of the assessee, it is found that the assessee's new address is 301, Kamla Residency, CTS No. 1050, Pune - 411016 having land-line and mobile no. 20-25677702 and 9822325282 respectively. A notice u/s 142 rws 129 issued on 15-02-2016 and served to the assessee on his new address requesting to submit the details as per notice by 24-02-2016. Assessee was also contacted over landline and mobile from time to time to submit the details. A SMS from mobile also sent to the assessee to submit the details. Assessee vide his letter dated 01-03-2016 has stated that: .... Further, I reiterate that neither had I r....
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....hat Notice u/s 143(2) are generated online and bear the address as provided by the assessee in its PAN database. It is verified that the notice was sent through RPAD on the address i.e. 268A, Shivajinagar, Pune available in your PAN database and there is no reason for the same being unserved upon you. It is also seen that the notice which was sent by RPAD on 03-09-2014 has not been received back. Proof of dispatch through RPAD in the form of acknowledgement by Department of Post (dated 10-09-2016) is hereby enclosed for your reference. In respect of the above, you are once again being provided an opportunity by the undersigned to submit the documents as per Notice u/s 142 dated 15-02-2016. If your submission either personally or by your Authorized Representative will not be received in the office of the undersigned on or before 28-03-2016, it will be assumed that you have nothing to say and the assessment will be completed u/s 144 of the Income Tax Act, 1961.' On 28-03-2016, a letter dated 28-03-2016 received in this office on 28-03-2016 from the assessee submitted that: "The assessment proceedings are being conducted unlawfully without following the ....
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....rmality but it given the jurisdiction to the A.O. to complete the assessment U/s 143(3) of the Act, therefore, non-issuance of notice U/s 143(2) of the Act vitiates the assessment proceedings. In view of decision of Hon'ble Supreme Court in the case of ACIT Vs Hotel Blue Moon (supra) as well as other decisions in this regard cited above, the assessment proceedings completed without issuance of notice U/s 143(2) of the act and void ab initio and liable to be quashed. Delhi High Court Commissioner of Income Tax vs Lunar Diamonds Ltd. on 3 March, 2005 Equivalent citations: (2005) 197 CTR Del 312, 2006 281 ITR 1 Delhi Gujarat High Court Deputy Commissioner Of... vs Mahi Valley Hotels And Resorts on 31 August, 2005 Equivalent citations: 2006 287 ITR 360 G M/s. Cosmat Traders Pvt. Ltd Vs ITO (ITAT Kolkata) ITA No. 457/Kol/2020 Date: 21/04/2021, Assessment Year: 2012-13 All ITAT Kolkata It was further submitted that issuance of notice under Section 143(2) of the Act being prerequisite, in the absence of such notice, the entire proceedings would be invalid. Income Tax Appellate Tribunal-Mumbai San....
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....8/2015. The case which was under the jurisdiction of ITO, ward 3(3), Pune was later assigned to Addl CIT, Range -3, Pune. The address used for issuing notice u/s 143(2) and 142(1) are one and the same. When notice was served u/s 143(2) it is not known why the notice was not served under sec 142(1). The address on which notice was sent u/s 143(2) and under sec 142(1) are the same and is given below: Address as per PAN database Disputed address Shri Dhanottam Vasant Lonkar, Shri Dhanottam Vasant Lonkar, 268-A 301, Kamala Residency Shivaji Nagar, CTS No.1050 Pune-411005 Pune-411016 The disputed address is entered as the new address in PAN database having landline no 20-25677702 and 9822325282 respectively. During appellate proceedings the copy of the notices filed were perused and the following picture emerges. Table 1 Notice u/s. Date of notice Address used 143(2) 3/9/2014 Shivaji Nagar address 142(1) 17/8/2015 Shivaji Nagar address 142(1) 15/2/2016 Kamala residency, model colony address 143(3) order 31/3/2016 Kamala residency, Model colony address Letter to CIT(Appeals) 5/12/2017 Ka....
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....013, 6 months from the end of the FY ends on 30/9/2014. Notice under section 143(2) is served on 3/9/2014 which is within the time limit prescribed. Hence this argument of the taxpayer that notice u/s 143(2) was not served within time limit prescribed is not correct. This ground raised by the taxpayer is rejected." 7. Aggrieved assessee is now in appeal before this Tribunal. 8. Ld. Counsel for the assessee submitted that notice u/s. 143(2) of the Act needs to be served upon the assessee within six months from the end of the assessment year but the assessee has not received any such notice on the address which has been mentioned in the income-tax return as well as the one mentioned in the PAN database also. He further stated that all the facts have been narrated in the affidavit where it has been stated that the address of the assessee has always been "1286A, Shivaji Nagar Pune 411005" but the address mentioned in the notice issued u/s. 143(2) of the Act is of "268A, Shivaji Nagar, Pune - 411005" which has never been his address. Details have been filed by the assessee in the paper book along with the facts about the notice being not served validly u/s. 143(2) of the Act summa....
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.... a. Pr. CIT Vs. ATLANTA Capital Pvt. Ltd. 464 ITR 341(DEL) (SLP withdrawn by Revenue being Low Tax Effect) 9. On the other hand, ld. Departmental Representative vehemently argued supporting the order of ld.CIT(A) and also relied on the following decisions and also the judgment of Hon'ble Apex Court in the case of PCIT Vs. I. Ven Interactive Limited (2019) 110 taxmann.com 332 (SC) where the Hon'ble Court observed that since no application was made by the assessee to change address in PAN database and the old address was continued in the PAN database and further the assessee having failed to produce alleged communication intimating the AO about the new address, the Hon'ble Court held in favour of the Revenue holding that the AO was justified in issuing notice at address available as per PAN database more particularly when return has been filed in e-module scheme : 1. Ramesh Khosla vs. ITO (1985) 154 ITR 556 2. Capital Gem Overseas(P) Ltd. Vs. ITO (2006) 101 ITR 117 (Delhi) 3. ACIT Vs. M/s. Sonal Industries Ltd. - ITA No.5677/Del/2011, dated 29.02.2012 10. Ld. Counsel for the assessee gave following written note distinguishing the case of the as....
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....s stage is that whether a valid notice u/s. 143(2) of the Act has been served upon the assessee or not. It has been consistently held by Hon'ble Courts that if a valid notice u/s. 143(2) is not served upon the assessee then such assessment proceedings are vitiated and deserves to be quashed as void ab-initio. The year under appeal is A.Y. 2013-14 and the return of income was filed by the assessee on 27.09.2013. Now for carrying out the assessment proceedings in case of the assessee who has furnished the return of income, there is statutory requirement of serving a notice u/s. 143(2) of the Act within six months from the end of the financial year in which the return is furnished. For necessary guidance, section 143(2) of the Act is reproduced below : "(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 or the prescribed income-tax authority, as the case may be, if, considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under-paid the tax in any manner, shall serve on the assessee a notice requiring ....
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....ce Address is stated to be "D.V. Lonkar, 268-A, Shivaji Nagar, Pune Maharashtra 411005" and the Residence address is stated to be "301, CTS No.1050, Kamala Residency, Shivaji Nagar, Model Colony, Pune Maharashtra, India-411016". Thereafter, the assessee has opted the residence address as communication address. In other words, the communication address requested by the assessee has been 301, CTS No.1050, Kamala Residency, Shivaji Nagar, Model Colony, Pune Maharashtra, India-411016" and even the return of income has been filed at this address. 15. Now it was argued by the ld. DR that notice was issued on the address mentioned in the PAN database. He also stated that assessee should bring copy of PAN application in which the address has been mentioned and then it can be verified whether there was a mistake at the end of the assessee to have mentioned the address 268A, in place of 1268A, Shivaji Nagar in the PAN application or it was the mistake of the Data Entry operator if the details in the PAN data which is wrongly mentioned as 268A instead of 1268A. However, copy of PAN application should be filed but again it was argued by the ld. Counsel for the assessee that they have specif....
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.... which was filed on 06.05.2024) informing that "records not available with post office. Even when ld. DR was asked during the course of hearing to examine the assessment records and see whether any proof is available about the service of notice to which the ld. DR after referring to the assessment records denied to have any such evidence of having served the notice at 268A, Shivajinagar, Pune 411005. 18. The fact that valid notice u/s. 143(2) of the Act was not served upon the assessee further gets corroborated with the observation of the AO in the assessment order itself where he states that when notice u/s. 142(1) of the Act was issued on 17.08.2015 at "268A, Shivaji Nagar, Pune 411005" on which notice u/s. 143(2) of the Act was served, the same was returned back with the remarks that "the assessee is not in given address". Thereafter, ld. AO observed that the PAN database indicates that the assessee's new address is "301, Kamala Residency, CTS No.1050, Pune 411016" and then the notice u/s. 142(1) was issued and served upon the assessee. Here. Ld. AO has referred the address "301, Kamala Residency, CTS No.1050, Pune 411016" as new address. We however find that this observation....
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....he assessee the Assessing Officer sent a notice dated 30th November, 2007 under section 143(2) of the Act mentioning the old address by handing over it in the post office and sought to argue that handing over of letter in the post office within due date would be due compliance of the provisions of the Income-tax Act, so far as service of notice within time was concerned. Later on 11th December, 2007 the Assessing Officer sent one more notice under section 143(2) of the Act at the company's new address. Under the above circumstances, the Hon'ble Bombay High Court held that as the objection to the assessment proceedings was taken much before completion of such proceedings on the basis of no service before the expiry of the period, i.e., 30th November, 2007 in this case the Assessment Order would not be saved by Section 292BB of the Act. Hon'ble High Court before arriving at a decision favourable to the assessee referred to the provisions of section 282 of the Act and section 27 of the General Clauses Act to understand/explain the expressions "serve" or "given" or "sent". 21. In yet another case, Hon'ble Bombay High Court in the case of Asstt. CIT v. Geno Pharmaceuticals Ltd. [....