TaxTMI 
TaxTMI 
TaxTMI 
2025 (12) TMI 395
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.... LLP in the name and style of M/s AR Landcraft LLP and there were various high value transactions. Accordingly, after recording the reason for reopening, a notice u/s 148 of the Act has been issued on 31.03.2021. Thereafter, vide letter dated 26.10.2021, the assessee was requested to make compliance in response to the notice issued u/s 148 of the Act. The assessee vide reply dated nil received by the A.O. on 25.11.2021, requested the A.O. to treat the original return of income filed as return filed in response to the notice issued u/s 148 of the Act. Assessment order came to be passed on 26/03/2022 u/s 147 of the Act by making an addition of Rs. 21.55 Crore u/s 68 of the Act on account of unsecured loan from Rudra Buildwell Homes Pvt. Ltd. and Sky Blue Industries Pvt. Ltd. as the assessee failed to furnish complete details/information. 3. Aggrieved by the Assessment Order dated 26/03/2022, the Assessee preferred an Appeal before the Ld. CIT(A). The Ld. CIT (A) vide order dated 29/07/2024, deleted the addition of Rs. 10 crore made u/s 68 of the Act received from Rudra Buildwell Homes Pvt. Ltd. and confirmed the addition of Rs. 11.55 Crore received from Sky Blue Industries Pvt. Lt....
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....ase, though the date of the notice issued u/s 148 of the Act (un-amended) mentioned as 31/03/2021 (pre-amendment period), however, the said notice has been issued/served on the Assessee only on 20/04/2021 and as on the said date, the old provision of Section 148 has been substituted with new provisions introduced vide Finance Act 2021 was in force. Therefore, the notice dated 31/03/2021 u/s 148 of the Act (Old), served on 20/04/2021 is in violation of mandatory provisions of Section 148, 148A and 149 of the Act introduced vide Finance Act 2021. 8. The Jurisdictional High Court in the case of Suman Jeet Agarwal Vs. Income-tax Officer reported in [2022] 143 taxman.com 11 (Delhi) in which it was held as under :- "25.12. The review of the aforesaid judgments of the Supreme Court and the several High Courts shows that all Courts have consistently held that the expression 'issue' in its common parlance and its legal interpretation means that the issuer of the notice must after drawing up the notice and signing the notice, make an overt act to ensure due despatch of the notice to the addressee. It is only upon due despatch, that the notice can be said to have been '....
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....sued does not persuade the Court and is contrary to the judgment relied upon by the said party. 25.15. This Court in the case of Court On its Own Motion v. Commissioner of Income Tax, (2013) 352 ITR 273, while dealing with Section 143(1) of the Act of 1961, has held that the law requires that, the intimation under Section 143(1) should be communicated to the assessee. The uncommunicated orders or intimations cannot be enforced and are not valid. The relevant extract of the aforesaid decision is reproduced hereinunder: "... 33. The second grievance of the assessee is with regard to the uncommunicated intimiations under Section 143(1) which remained on paper/file or the computer of the Assessing Officer. This is serious challenge and a matter of grave concern. The law requires intimation under Section 143(1) should be communicated to the assessee, if there is an adjustment made in the return resulting either in demand or reduction in refund. The uncommunicated orders/ intimations cannot be enforced and are not valid. 152 ...But when there is failure to despatch or send communication/intimation to the assessee consequences must follow. Such intimati....
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....ection (1) or subsection (2) after the expiry of one year from the date of the decision or order of the adjudicating authority. ... " The Court in the aforesaid judgment deliberated with reference to the phrase "No order shall be made" in Section 35-E(3) of the Act of 1944 and concluded that the date on which the order was made by the adjudicatory authority by signing it is a relevant date for W.P.(C) No. 10/2022 and connected matters Page 117 of 152 determining if it was passed within limitation. As is evident, the expression used in Section 35E(3) of the Act of 1944, is "no order shall be made" which is distinct from the expression used in the Section 149 of the Act of 1961 which reads as "No notice under Section 148 shall be issued". The two statutory provisions are materially different and the ratio of the said judgment can have no bearing in interpreting Section 149 of the Act of 1961. 25.18. Additionally, the contention of the counsel for the Department that generation of Section 148 Notice on ITBA screen amounts to "issued" within the meaning of Section 149 of the Act of 1961 is not borne out from the instructions issued by the Directorate of Income Tax (Sy....
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....ferred to as "the Act"), has decided that no communication shall be issued by any income tax authority relating to assessment, appeals, orders, statutory or otherwise, exemptions, enquiry, investigation, verification of information, penalty, prosecution, rectification, approval etc. to the assessee or any other person, on or after the 1st day of October, 2019 unless a computer-generated Document Identification Number (DIN) has been allotted and is duly quoted in the body of such communication." (Emphasis Supplied). In fact, in several cases, we take judicial notice that even as on date the JAOs issue notices which do not have DIN and in those cases the Department contends that the absence of the DIN does not make those notices invalid. 25.21. The contention of the counsel for the Department that since the date of the issuance of the Notices is a disputed issue of fact the same should not be entertained in the writ petitions is also without merit. There is no dispute in the present cases and it has been conceded during rejoinder arguments that the Notices have been despatched on 1^st or after April, 2021, unlike in the case of Rajesh Sunderdas Vaswani (Supra) wh....
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....oter of the Notice has no basis in law and should be ignored by this Court, cannot be accepted. The Department cannot deny the contents of its own Notice and it is bound by the said contents. 25.25. In this regard it will also be useful to refer to Para 2.10.6 of the ITBA, User Assessment Manual, Version 1.9, August 2020, as referred to by the Department in its Counter Affidavit in W.P. (C) No. 13814 of 2021. The said instruction draws the attention of the income tax officer to the consequence of the date of digital signature and date of generation of document being different, if the digital signatures are affixed subsequently. Para 2. 10.6 reads as under: "... ii. Generate and Digitally sign later (Applicable for single as well as bulk generation): * Click Generate and Digitally sign later. In this case, document will be generated successfully immediately. * To sign the document later, go to "View/ Edit Despatch Register" Screen. Select the status as 'Pending for signing' and Search. * Select the document and click Sign Documents. Ensure DSC is attached to the system. * Select the DSC of the user. * Cl....
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.... 2000 is sine qua non for issuance of Notice through electronic mail for the purpose of Section 149 of the Act of 1961 ?- The Court has answered this is in the affirmative, in favour of the assessee. AND Question No. (III): Whether the time taken by the ITBA's e-mail software system on 31st March, 2021, in despatching the e-mails to the assessee is not attributable to the JAOs and the notices will be deemed W.P.(C) No. 10/2022 and connected matters Page 124 of 152 to have been issued on 31st March, 2021? - The Court has answered this in the negative against the Department." 9. Further, the Hon'ble Supreme Court in the case of CIT Vs. Laxman Das Khandelwal reported [2019] 108 taxmann.com 183 (S.C) held the provision of Section 292BB of the Act only cures the infirmities in the manner of service of notice and it will not cure complete absence of notice itself. The relevant portion of the Judgment are as under :- "7. A closer look at Section 292BB shows that if the assessee has participated in the proceedings it shall be deemed that any notice which is required to be served upon was duly served and the assessee would be precluded from taking any objections that the....