TaxTMI 
TaxTMI 
2025 (2) TMI 1731
X X X X Extracts X X X X
X X X X Extracts X X X X
.... CIT(A) is contrary to the facts and circumstances of the case and provisions of Income Tax Act 1961. 2. The Id. CIT(A) erred to hold that the notice u/s 148 was sent for the service after 10 months delay and holding the assessment order dated 19.12.2019 as time barred. 2.1. The Id. CIT(A) erred to hold that the notice u/s 148 was sent for the service after 10 months delay without appreciating the fact that the notice was issued before limitation date of issuance of notice through postal department. 2.2. The Id. CIT(A) erred to hold that the notice u/s 148 was sent for the service after 10 months delay without appreciating the fact that the notice was issued before limitation date of issuance of and subsequently when it retuned back unserved it was served through affixture and later on through post also. 2.3. The Id. CIT(A) erred in not differentiating between issuance of notice and service of notice. 2.4. The Id. CIT(A) erred in not appreciating the provisions of section 153(2) of the Act wherein it was stated that assessment shall be completed after the expiry of nine months from the end of the financial year in which the notice under ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 5. Brief facts of the case are that the ld. Assessing Officer found that during the financial year 2010-11, the assessee had made cash deposits to the tune of Rs. 21,28,000/- in his savings bank account and as per 26AS details, the assessee had received payments to the tune of Rs. 6,42,532/-. The assessee has not filed return of income for the A.Y.2011-12, the ld. Assessing Officer initiated proceedings u/s.147 of the Act by issuing notice u/s 148 of the Act dt:28.03.2018 with the prior approval of the Pr. Commissioner of Income Tax-5, Chennai. The notice u/s. 148 of the Act was served on the assessee on 19.02.2019. However, the notice u/s.148 has not been complied with by the assessee and no return of income was filed by the assessee in response to the said notice. Hence, the ld. Assessing Officer vide letter dt: 04.06.2019 required the assessee to show cause as to why proceedings u/s.276CC of the Act should not be initiated on him for non compliance to notice under section 148. The assessee vide letter dt. 18.07.2019, has enclosed computation of taxable income in response to notice u/s. 148 of the Act but the assessee has not uploaded the return online in the web-portal. The ld....
X X X X Extracts X X X X
X X X X Extracts X X X X
....though the notice was issued on 28.03.2018 the notice could be served only on 19.02.2019 and hence, as per the time limit above, end of the financial year was 31.03.2019 and 12 months from the end of the financial year was 31.12.2019. It is also to be noted that the assessee did not intimate the change of address to the Department and hence there was a delay in ascertaining the present address and consequently, a delay in service of notice in person. 4. A copy of the tear off acknowledgment of the Notice Server who was tasked with the service on notice issued on 28.03.2018 is also attached. He had returned the notice with the comment that he was informed by the watchman of the building at Abhiramapuram that the assessee was not residing there. The report of the Notice Server is dated 05.04.2018. Therefore, the notice was issued in time and delivery of the same could not be made as the assessee did not inform the fact of change of address. The Revenue also relied upon the judgment of the Hon'ble Apex Court in the case of Pr. CIT v. I-Ven Interactive Ltd. [2019] 110 taxmann.com 332/267 Taxman 471/418 ITR 662 (SC). 8. The assessee has also filed the written submissions ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssued on 17.02.2019 (over written on 28.03.2018 in the another tear off slip placed through email by the Senior DR on the appellant on 28.01.2025. The attachment in the email is extracted herein after for demonstrating the undisputed over writing in the another tear off slip shared by the Income Tax Department for the present hearing: The provisions in Section 282 of the Act as existed at the time of issuance of disputed notice under Section 148 of the Act dated 28.03.2018 is extracted herein below: Service of notice generally. 282. (1) The service of a notice or summon or requisition or order or any other communication under this Act (hereafter in this section referred to as "communication") may be made by delivering or transmitting a copy thereof, to the person therein named- a) by post or by such courier services as may be approved by the Board; or b) in such manner as provided under the Code of Civil Procedure, 1908 (5 of 1908) for the purposes of service of summons; or c) in the form of any electronic record as provided in Chapter IV of the Information Technology Act, 2000 (21 of 2000); or d) by any other means of tra....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s Objection, the 2 additions sustained / confirmed by the First Appellate Authority is independently challenged and in the light of the re-assessment order completed under Section 144 of the Act, another meaningful opportunity may be granted to substantiate the stand of the Respondent / Assessee by setting aside the re-assessment order in the event of the Bench coming to a different conclusion on the validity of the said re-assessment. The said submission is made in view of the conclusion of the hearing on the preliminary legal issue'. 9. We have heard both the parties and perused the appeal records and written submissions. We find that as per revenue version, the first notice under section 148 dated 28.03.2018 was sent / dispatched through the 'notice server' on 29.03.2018. However, the same was not served as the concerned assessee was not available at the address mentioned in the notice as reported by watchman. Thereafter, revenue again served the same notice by affixture on 26.12.2018. Further as per revenue version, the notice dated 28.03.2018 was finally served on the assessee on 19.02.2019 by the notice server, hence as per section 153 of the Act the assessment order dated....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sioner of Income-tax v. Naveen Chander [2010] 323 ITR 49 (P&H) held as under: 2. The basic controversy raised is as to whether the assessee-respondent was served under section 158BD of the Act at his last known address on July 23, 2001, by way of affixture. The Tribunal considered the aforesaid issue as a "fundamental" controversy because it was necessary to establish that such a notice was served to confer jurisdiction. The Tribunal placed reliance on the provisions of Order V, rule 17 of the Code of Civil. Procedure, 1908 (for brevity "the Code") and has concluded on principle that where notice of service is claimed to have been served by affixation under Order V, rules 17, 18 and 19 of the Code then it becomes necessary to examine whether such service has been made in accordance with the procedure, as it is mandatory. The first requirement is to ensure that the place is properly identified and, secondly, the report is authenticated by independent persons to avoid any attempt by the process server to prepare the report sitting in his office. The Tribunal has referred to the report dated July 23, 2001, issued by the process server. According to the report of the Inspector....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., it has to be held that the impugned assessment proceedings resulting in the order dated June 27, 2003, are bad in law. The same is hereby set aside. The Assessing Officer can issue afresh notice, if so authorized under the law." 3. It is thus obvious that finding with regard to service of notice to confer jurisdiction is absent. 4. The only argument raised by Mr. Vivek Sethi, learned counsel for the Revenue-appellant is that there are signatures of the assessee in the order sheet entry dated May 19, 2003, which acknowledges the fact that he had duly noted the notice under section 158BD of the Act. However, on close scrutiny, we find that the claim made by the Revenue in the grounds of appeal and in the questions of law that there is order sheet entry dated May 19, 2003, showing that the assessee had noted the factum of notice under section 158BD of the Act is without any substance. The Tribunal had taken the view that registered AD letter was received back unserved and thereafter service was sought to be effected by affixation which was required to be done in accordance with the procedure laid down by Order V, rule 20 of the Code. These are necessarily findings ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....essment Year 2015 .- 16. Name PAN V ARUNACHALLAM PERSONAL INFORMATION AND THE DATE OF ELECTRONIC AAIPA9044Q Flat/Door/Block No Name Of Premises/Building/Village Form No. which has been electronically transmitted TRANSMISSION 34 14 B ITR-2 Road/Street/Post Office Area/Locality BEACH HOME AVENUE BESANT NAGAR Status Individual Town/City/District State Pin Aadhaar Number CHENNAI Tamil Nadu 600090 Designation of AO (Ward / Circle) NON CORP CIRCLE 3(1) CHE Original or Revised ORIGINAL E-filing Acknowledgement Number 745422780310317 Date(DD-MM-YYYY) 31-03-2017 Document 2 Scan copy of the acknowledgement of service - in the case of Arunachalam Veeraih - Reg Tue, Jon 26, 4:28 PM [6 days ago) DR ITAT B BENCH CHENNAI n As per the directions of the Hon'bie B bench, forwarding the scan copy of the acknowledgement of service of notice in the case of Arunachalam Vieraih. Regards Of St. AR-2. B bench, ITAT, Chennai One attachment . Scanned by Gmail @ PDF scan copy of ack .. Document 3 1 197 अ० क0 सू० सी० - 50 I. T. N. S .- ....