TaxTMI 
TaxTMI 
2025 (9) TMI 1019
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....nder Section 148 of the Act was issued on 17.03.2020 which was complied by the assessee on 05.01.2021. Therefore, statutory notice along with questionnaire was duly served upon by the assessee. During the course of assessment proceedings, the assessee filed written submissions along with copies of ledger account before the Assessing Officer by stating that the assessee received Rs. 10,00,000/- from M/s Gajgamini Commodities on account of sale of shares. However, the Assessing Officer without doing any verification on the evidences furnished by the assessee which comprises of ledger account, bank statement, ITR, Balance Sheet etc. of Gajgamini Commodities Pvt. Ltd. The ld AO came to the conclusion that the assessee has not prove the genuineness of the transaction and consequently added amount to the income of the assessee as unexplained credit. The Ld. CIT(A) dismissed the appeal of the assessee by upholding the order of Assessing Officer. 4. After hearing the rival submissions and perusing the material available on record, we find that the notice under Section 148 of the Act was issued to the assessee which is available at page no. 9 of the paper book which is unsigned the copy ....
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....otice was received by the petitioner by speed post only on 16.04.2022. 10. It is, therefore, the contention of the petitioner that the notice u/s. 148 being an unsigned notice, the same is invalid and consequently proceeding on the basis of an invalid notice vitiates the entire reassessment proceedings as the same is without any jurisdiction. It is further the argument of learned counsel for the petitioner that proceeding on the basisof an invalid notice, which in any case, has been issued after three years from the end of the relevant assessment year, as required under the provisions of section 149(1)(b) of the Act, constitutes a jurisdictional error on the part of the respondents. 11. Learned counsel for the petitioner makes a reference to a Division Bench judgment of the High Court of Calcutta in Commissioner of IncomeTax v. Aparna Agency (P.) Ltd.1 to contend that the provisions of section 192(B) of the Act do not provide for a cure when the notice under the Act is invalid by virtue of it not having a signature affixed as is required under the relevant provisions. He further refers to another judgment of the High Court of Calcutta in B.K. Gooyee v. Commissione....
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....otice with a body but without a soul. Hence, it is an invalid notice and consequently equivalent to no notice.Hence, these cases do not militate against the principle that there can be no waiver where the condition precedent for assumption of jurisdiction is not fulfilled. Accordingly, my opinion is that the notice under section 34 of the Income-tax Act, 1922, to be a proper, valid and legal notice, requires to be signed by the Income-tax Officer, non-compliance of which would make it bad and all the proceedings started thereafter would be without jurisdiction. Mr. Meyer, however, in the last resort contended that in the facts of this case, the assessee in any event, waived the notice. The expression "wavier" has a professional meaning. It is true that the notice was duly served and was said to have been received by the assessee, but it is determined on high authority, that the notice under section 34 (I mean a valid notice) is a condition precedent for the assumption of jurisdiction. A notice under section 34 is therefore, not merely a procedural requirement. In its absence, it does not become a case of procedural defect. The difference between the cases of want of jurisd....
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....ice, as already noticed, is a condition precedent to the assumption of jurisdiction by the Assessing Officer. The existence of a valid notice is, therefore, a jurisdictional fact. The question, therefore, is not to be looked at from the perspective that the decision to issue notice was by an authority competent in that behalf under the Act and, therefore, submitting to his jurisdiction without objection, theinference of waiver arises. The question being one of jurisdiction, to be more specific the condition precedent to the assumption of jurisdiction what has to be seen is that the person that purported to exercise the jurisdiction vested in him had in fact exercised that jurisdiction and signed the said notice. The said test has not been satisfied in the case on hand. Unlike the judgment of this court in Anand and Co. [1994] 207 ITR 418 relied upon by the Revenue the case on hand is not one where the authenticity of the show-cause notice is in question. In the case on hand as held by the fact-finding authority the show-cause notice has not been signed by any person and the place intended for signature was kept blank. 16. The Madhya Pradesh High Court has taken a similar v....
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.... the instant case and the Tribunal in our opinion, was not right in holding that the notice issued under section 271(1)(a) of the Act was a valid notice in the eye of law. 6. In view of our answer to the first question, our answer to the second question is that the Tribunal was not right in holding that the absence of the signature on the notice simply constituted a mistake or omission within the meaning of section 292B of the Act. 7. In view of the fact that no valid notice was served on the assessee before levying penalty, our answer to the third question is that, on the facts and in the circumstances of the case, the penalty levied under section 271(1)(a) of the Act was not valid. Thus, ouranswers to all the three questions referred to this court are in the negative and in favour of the assessee. 17. Anand And Co. (supra) cited by the Revenue, proceeds on the basis that the notice issued u/s. 148 of the Act did contain a signature, but the question before the Calcutta High Court was whether the signature was authenticated or not. In that case, the signature was affixed in the form of a curved line, which the assessee claimed was not an authentic signat....
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....ther dealt with the second substantial question of law as to whether the Tribunal was right in holding that the absence of a signature on the notice constitutes a mistake or omission within the meaning of section 292B of the Act and while addressing itself to that question, has concluded that in the absence of a signature on the notice, the same would not constitute a mistake or omission and would not be curable under the provisions of section 292B of the Act. 21. We are, therefore, of the considered opinion that in the present case, the notice u/s. 148 dated 02.04.2022 having no signature affixed on it, digitally or manually, the same is invalid and would not vest the Assessing Officer with any further jurisdiction to proceed to reassess the income ofthe petitioner. Consequently, the notice dated 02.04.2022 u/s. 148 of the Act issued to the petitioner being invalid and sought to be issued after three years from the end of the relevant assessment year 2015-16 with which we are concerned in this petition, any steps taken by the respondents in furtherance of notice dated 21.03.2022 issued under clause (b) of section 148A of the Act and order dated 02.04.2022 issued under cla....