TaxTMI 
TaxTMI 
2025 (7) TMI 1431
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....nd then, column "To" is also blank. Further, there is no date mentioned in the said notice and subject portion is also blank. It was submitted by the Ld. Counsel that in effect, the notice u/s. 142(1) of the Act has not been served on the assessee for the relevant assessment year which vitiates the assessment order as arbitrary, bad in law. The Ld. Counsel in this regard has placed reliance on the decision of the Hon'ble High Court of Delhi in the case of Sumanjeet Agarwal Vs. Income Tax Officer, Ward-61(1) & Ors, 449 ITR 517 (Del.) wherein the question of law before the Hon'ble High Court were as follows: "4. Category D: is in respect of writ petitions where Notice is dated 31st March, 2021 or before, digitally signed on or before 31st March, 2021, no service either by e-mail or by post or any other mode and assessee came to know later on through Portal or receipt of subsequent notice under Section 142(1)." That answering the said question of law in favour of the assessee against the revenue, the Hon'ble High Court has held and observed as follows: "28.1. With respect to the Notices falling under the category 'D' dated 31st March 2021 and digitally signed on 3....
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....e is thereafter also uploaded in the E-filing portal of the assessee, hence the Department cannot contend that it had done away with emailing of notices issued. Most importantly, the Department has been consistently using this mode of e-mail based communication to transmit notices and no reason whatsoever has been provided to explain as to why these Notices were not e-mailed to the select few assessee's falling under category 'D' and was only uploaded on the E-filing portal. It is also unclear as to why the Notices though digitally signed on 31st March 2021 were never e-mailed to the assessee's, because, as per the Compliance Affidavit, upon affixation of DSC by the JAO the e-mail software system of the ITBA portal would be automatically triggered. 28.6. It should be noted that, when the legislature decided to include this mode of transmission i.e. placing it on the E-filing portal/registered account of the assessee, as valid service in the Act of 1961, it duly included the safeguard of a real time alert. For reference, Section 144 B(6)(ii)(a) of the Act of 1961 statutorily recognizes this mode of transmission between the Income Tax authority and the assessee. Section 144 ....
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....by the assessee and the Department has not disputed this fact. 28.2 The mode of service of electronic record, i.e., Notices in the present case is provided under section 282 of the Act of 1961 and Rule 127 of the IT Rules. The mode of service of a notice, electronically, is prescribed in Section 282 of the Act of 1961, it states that service maybe made by transmitting a copy in the form of electronic record as per chapter IV of the Act of 2000. It also states that the CBDT is empowered with the responsibility to make rules providing addresses for communication through electronic mail or electronic mail message. The CBDT vide rule 127(b) of IT Rules prescribed email addresses, as made available by the assessee's, for communication transmitted electronically. 28.3 Thus, there is no dispute that the transmission of an electronic notice by placing an authenticated copy in the registered account of the assessee on the E-filing portal is not specifically prescribed in section 282 and rule 127. Instead, it finds a mention in the CBDT Notification - No. 4/2017 dated 3-4- 2017. The said notification, provides that, the notices issued by any income tax authority wi....
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.... copy thereof in the registered account of the assessee; or. ..... and followed by a real time alert" Finding for Notices falling under category 'D' 28.7 We hold that, in order for this mode of transmission i.e. uploading of the Notices in the E-filing portal of the assessee's, to be considered valid service, the Department should have issued a real time alert as provisioned in the aforementioned Section 144(B)(6)(ii)(a) of the Act of 1961. Since, the prescribed mode of service is not followed it is akin to no due despatch of Notices, therefore it cannot be said that the Notices were validly issued. 28.8 However, since the assessee's in the present case did become aware of the Notices later and the assessment proceedings in their cases are still pending, we are not inclined to quash these Notices. 28.9 It has come on record that the ITBA records the time and date when the E-filing portal is accessed by the assessee, so the first date on which the Notices were accessed by the assessee's is duly available. This date will be considered by the JAOs as the date of issuance of Notices by the JAOs. Illustratively, in W.P. (C) 1....
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....sessee strongly placed his reliance on the order of Hon'ble Delhi High Court in the case of Suman Jeet Agarwal (Supra), wherein Hon'ble Court had discussed the various under categories of service of notice. Assessee's case is squarely falls under Q4 dealing with category "D" in the said judgment, which deliberates upon the notices issued dated 31st Match, 2021 or before, digitally signed on or before 31st march, 2021, no service either by e-mail or by post or any other mode and assessee came to know later on though Portal or receipt of subsequent notice under section 142(1). In present case, department have admitted that the notice could not be served through email but have also claimed that it has been despatched through Dak, however, unable to substantiate the same with any corroborative evidence/ document or despatch register even after several opportunities granted to prove the same. It could also not be established by the revenue that any real time alert is send to the assessee while the notice was uploaded on the portal, on the contrary assessee denied receipt of any real time alert by submitting an affidavit to this effect. This indicates that the department has no documenta....