TaxTMI 
TaxTMI 
2024 (6) TMI 1484
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....neither erroneous nor prejudicial to the interest of Revenue. 2. Without prejudice to ground no. 1, the revision order passed by Ld. Pr. CIT u/s 263 is illegal inasmuch as the same has been passed without providing any opportunity to appellant. Consequent revision order is illegal & is liable to be quashed / annulled. 3. The appellant reserves the right to add, amend or modify any of the ground/s of appeal. 3. Briefly stated, the assessee is an individual, who had not filed her return of income for the AY 2014-15. The case of the assessee was picked up for reopening assessment on the basis of information received from AIMS Module of ITBA, that during the financial year 2013-14, the assessee had entered into a transaction of purchase of property worth Rs.1,41,27,000/-. It is noticed by the Ld. AO that the assessee had not filed any return for the assessment year 201415, therefore, the source on consideration paid for purchase of land could not be established. Under such a situation, the case of the assessee was considered for re-opening u/s 148 of the Act and accordingly, notice was issued on 07.02.2018. Statutory notices u/s 142(1) and 143(2) etc. were issued, ....
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....se record and the submission of the assessee before the AO, noted his satisfaction that the assessment order in the present case is erroneous in so far as it is prejudicial to the interest of revenue, in view of the explanation (2) of Section 263 of the IT Act, consequently, the Ld. AO was directed to make adequate enquiries with regard to the genuineness of business, source of cash deposited and all credit entries in light of Section 68/69A of the IT Act. Consequently, he set aside the assessment order, remanded it back to the Ld. AO for fresh adjudication of the issue discussed after affording proper opportunity of being heard to the assessee. 6. Aggrieved by the aforesaid revisionary order u/s 263 of the PCIT, the assessee preferred an appeal before the Tribunal, which is for our consideration in the present case. 7. At the outset, learned Authorised Representative (in short, Ld. AR) on behalf of the assessee requested to take up ground No. 2 of the appeal first, alleging that the notice u/s 263 of the IT Act was never received by the assessee, therefore, no appearance could be made before the Ld. PCIT. It is the argument that adequate opportunity of being heard was not pr....
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....iance a report is submitted by the revenue dated 27.05.2024 to place their contentions counter to the argument of the assessee that whether the communication is properly served on the assessee in terms of provisions of the IT Act. The report submitted by the department is extracted as under: 10. On the basis of aforesaid report, it was the contention of learned Sr. DR on behalf of the department that the notice was duly uploaded on the ITBA portal, it was the duty of the assessee to vigilant enough to see such communications on the portal so as to make necessary compliance on time before the revenue authorities, failing which, the authorities are duty bound to take requisite actions, as mandated in the law. The dispatched as a proof for physical communication of notice was also called for verification, however, the department was unable to produce the same. 11. Learned AR, further, placed his reliance in the case of Suman Jeet Agrawal & Ors. Vs. Income Tax Officer & Ors. passed in W.P.(C) No. 10/2022 and other connected matter, wherein, the Hon'ble Delhi High Court had discussed the entire procedure regarding communication of notices by the department to the assessee under pr....
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....ings", as per the Notification No. 4/2017 is optional. The assessees have to register for the same and can also choose to opt out of it by notifying the Department. 28.5 It is unclear to us as to why e-mail based communication of notices is made optional in the Notification No. 4/2017, despite it being the statutorily prescribed mode of service through electronic transmission. Further, the ITBA portal itself is programmed in such a way that it triggers the e-mail software system when a notice is generated by the JAO and an authenticated copy of the same 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 assessees 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 assessees, because, as per the Comp....
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....e aforesaid judgment of Hon'ble Delhi High Court, it was the prayer of the learned AR that since the notice for revisionary proceeding u/s 263 of the IT Act was not served upon the assessee in terms of provisions of IT Act as categorically explained by the Hon'ble High Court. To substantiate further the genuineness of such fact and contention qua non service of notice to assessee, Ld. AR furnished a notarised affidavit dated 30.04.2024 duly signed by the assessee stating that "such notice was not received by me at any time physically or by email. That I had not received any real time alert on my registered Mobile No. "7089298777" in connection with issue of any such show cause notice by the Ld. PCIT". 13. Backed by aforesaid submissions, Ld. AR advanced the argument that since the department was unable to establish that service of notice was not done following the prescribed procedure or mode of service as prescribed in the Act, the same is akin to no due despatch of notice. Ld. AR requested that an order originated on basis of an unserved notice, thereby the assessee was deprived of on account of no proper opportunity of being heard, therefore, the same is null and void ab init....
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...., respectfully following the guiding principles enumerated by Hon'ble Delhi High Court in the case of Suman Jeet Agarwal (Supra), we accept the conditions of the assessee considering the facts of the present case that the assessee was not validly put to notice for proceedings initiated u/s 263 of the Act, therefore the order passed following such notice which is not validly server is liable to be quashed and we do so. In result Ground No 2 of the present appeal of the assessee, stands allowed. 17. As, we have quashed the revisionary order u/s 263 for the want of valid service of notice, therefore, we are not adverting to the other contentions raised by the assessee, thus the same are left open. 18. Resultantly, the appeal of the assessee in ITA 39/RPR/2022 is allowed in terms of our aforesaid observations. Order pronounced in the open court on 21/06/2024. ============= Document 1 01 8-Fiing Ayivos Mentire ADA Call v English MAMTA AGRAWAL y Authetland Parkness. thboard Betvisura Pending Actions Eastbind : Pending Acsony + e Proceedings 3 Vlew Hodiny + Detailed Notices Notice/Letter pdf Notice/ Communication Reference ID Date 10....
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....o communicate that, the relevant details have been verified from the ITBA Portal and it was observed that the sald communication has not been dispatched through e-mail and has been sent through Dak in absence of a valid e-mail id of the reference. Further, all out efforts were made to trace out the relevant dispatch register but the Tax Act. Copies of Screenshots taken in this regard are enclosed herewith for your kind assessee at the time of generating hearing notice (dated 12.03.2021) u/s 263 of the Income same couldn't be traced out inspite of our best efforts. It will also be pertinent to mention here that vide this office letter of even number dated 12.12.2023 (copy enclosed), your good office has been appraised about the missing of relevant dispatch register. This is for your kind information and necessary action. Yours faithfully, 37/05/20 Enci: As above Asstt. Commissioner of Income Tax (OSD) (Ananda Kumar Behera) For, Pr. Commissioner of Income Tax-1, Raipur Dispatch No Date of Issue PAN/TAN Addressee Name Comm. Ref. No. View Document Mode of Dispatch Date of Dispatch Date cf Service Status . 1 12/03/2021 AEXPA2335P MAMTA AGRAWAL H....