TaxTMI 
TaxTMI 
2025 (9) TMI 12
X X X X Extracts X X X X
X X X X Extracts X X X X
....ase of assessee was reopened by issuance of notice u/s 148 of the Act on 30/03/2017 and the assessment was concluded u/s 147/144 of the Act. 2.1 There was allegedly Non-PAN AIR information with the ld. AO that during the FY 2009-10, the assessee sold a residential property. The details of this transaction have been cited to be property bearing no. C-12, Sector 33, Noida was sold on 23.10.2009 for a consideration of Rs. 1,15,00,000/- and sale proceeds were utilized for construction of another residential house for claiming exemption under section 54 of the Act. The case of assessee is that it was in April 2018, the assessee came to know about the Assessment Order dated 06.11.2017 passed under section 147/144 of the Act. Then assessee collected the certified copy of the order from the office of the Assessing Officer on 27.04.2018. and challenged the same in first appeal. The Ld. CIT(A) granted the benefit of indexed cost of acquisition to the assessee and reduced the amount of capital gain to 30,03,599/- but did not allow the claim of exemption from capital gains made under section 54 of the Act by the assessee. Therefore, granted the partial relief to the assessee. As for same as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s not served on the assessee the ld. AR has submitted that it is settled law that mere issuance of notice under section 148 for reopening of assessment is not sufficient, service thereof to the assessee is mandatory. The assessee was never served with the notice issued under section 148 by the Ld. AO. Since the assessment was made ex-parte and the assessee never participated in the proceedings, the assessee did not get the opportunity to raise this ground before the Ld. AO. 7. Though Ld. DR has defended the issue and has submitted that it is not a case of non-issuance or non-service of notice. However, in contrast to his contention we will like to observe that the mandate of Section 148(1) of the Act is that, reassessment shall not be made until there has been service of notice, which is a condition precedent to making an order of assessment. The service 3 means service in accordance with law. Revenue cannot dispute that for reopening of assessment under section 147 the Act, issuance of notice is mandatory requirement and without same assumption of jurisdiction is vitiated. Further, in numerous decisions jurisdictional High Court and Tribunal has held that reassessment proceedin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t be initiated without the service of notice as provided in section 148 of the said Act The service of notice is a pre-condition for framing an assessment order under section 147. The learned counsel for the appellant sought to place reliance on the provisions of section 292BB of the said Act which has been introduced with effect from 1-4-2008. However, we feel that no reliance on that provision can be placed for two reasons. The first reason being that the said provision is not applicable to the assessment year 2001-02. The second reason being that this argument was not at all being raised before the Tribunal. In fact, the argument could not have been raised before the Tribunal because the amendment itself was introduced subsequent to the passing of the order, which is impugned herein." 7.2 Reliance can also be placed on the decision of Hon'ble High Court of Delhi in Veena Devi Karnani Vs. ITO [410ITR 23], where hon'ble high court has held that: "5. Rule 127(2) clearly states that the addresses to which a notice or summons or requisition or order or any other communication may be delivered or transmitted shall be either available in the PAN database of the assessee....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e. Further, on perusal of reasons to believe, we observe that the address of the assessee in the reasons to believe is mentioned as "C-12, Sector-33, Noida", which is completely incorrect. 10. There is thus substance in the contention of ld. AR that ld. AO has not taken recourse as per provisions of the Act and the Rules. In this context we find that as per sub-rule (1) of Rule 127, for the purposes of subsection (1) of section 282, the addresses to which a notice or a summons, etc. may be delivered or transmitted, shall be as per the sub-rule (2). Clause (a) of sub-rule (2) of Rule 127 includes four sources of address for such transmission. First one being the address available in PAN database of the addressee. The Ld. AO did not even consider the address available at the PAN database for proper service of notice. In fact, second proviso to sub rule (2) of rule 127 provides that if the communication cannot be delivered to the address mentioned at sub rule (1), it can be delivered to the address available with the banking company, post office, insurance company, records of the Government, local authority or furnished in form 61, 61A. The Ld. AO did not even choose to make any en....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uasion qua earlier ground and aforesaid discrepancy cited, we are of view that the reopening is based on consideration of facts which are incorrect and same establish that there was no effort of the ld. AO to verify any fact as was available with him in the Non-Pan Information and same was accepted without any perusal of records and application of mind The Id, AO assumed that the assessee does not have PAN and he did not file any of his return and therefore without going through the return of income of the assessee and without verifying the fact whether the income which in the opinion of Ld. AO has escaped assessment has actually escaped or not, he recorded reasons and issued notice, that too at incorrect address. He did not even care to go through the PAN database of the assessee and the records with the department. 15. A co-ordinate bench was confronted with similar set of facts in the case of Hafizuddin Hazi (ITA No. 3690/D/2021) vide order dated 16/02/2022, as the case was reopened on the factually incorrect premise that the assessee had not filed his return of income and therefore, the income has escaped assessment. The reopening was quashed by holding as under: "W....