TaxTMI 
TaxTMI 
2026 (5) TMI 840
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....erred in rejecting the request seeking Remand Report from the Assessing Officer by stating that the Appellant could have sought them under RTI Act without show-causing the Appellant beforehand that the request was proposed to be rejected, thereby denying fair hearing opportunity. 4. Without prejudice, the Learned First Appellate Authority erred in applying the provisions of Section 292BB of the Act, without considering the legal objections raised in Ground Nos. 3 and 4 in Form 35 pertained to Issuance of Notice and Order (the moment and the mode in which it left the control of the Assessing Officer) and not with respect to service. 5. Without prejudice, the Learned First Appellate Authority also erred in not considering that the Assessing Officer made the addition of Rs. 27,49,890/- without considering that: a) The Appellant had properly explained the source for Cash Deposits into Bank, being out of earlier Cash Withdrawals and Property Sale Realization and b) The Appellant had categorically explained that Term Deposits noted in the Impugned Order are nothing but Re-deposits of matured Term Deposits, which were made at the time of retirement out of Retirement Bene....
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.... to obtain the said information under the Right to Information Act, 2005. 4. On obtaining the said information under RTI Act, the Appellant, referring to Order under Section 7 of the RTI Act, 2005 [Page No.5 of Paper-Book] would submit that notice u/s. 148 dated 29.03.2017 was initially sent to an incomplete address (without door number), which was returned by postal authorities on 31.03.2017. However, the date of handing over the notice to postal authority was stated to be not available as per records. 5. Further, in the said Order, it was mentioned that the notice dated 29.03.2017 was sent to the address (with door number) as available as per Department records with a covering letter dated 07.04.2017 and served on 11.04.2017. 6. It is pertinent to mention that even in respect of the date of handing over the notice dated 29.03.2017 with covering letter dated 07.04.2017 is not available as per records, as observed in the RTI Order. 7. In such circumstances, the Appellant would submit that the Notice u/s. 148 dated 29.03.2017 cannot be said to have been issued by the Assessing Officer on or before 31.03.2017, being the date expiry of six years fro....
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....ing Letter on 07.04.2017 only, showing a gap of atleast seven days (atleast 7 days, as actual date of handing over letter dated 07.04.2017 and notice dated 29.03.2017 are not available with the Department and it is assumed as 07.04.2017). 14. Above all, the provisions of Section 292BB cannot save the impugned action of the Assessing Officer, as it gets triggered only if there is valid issue of notice as per the Act and the dispute pertains only to deficiencies in the date or mode of service of a notice. 15. In the present case, as argued, the Appellant has been disputing that there is no valid issue of notice u/s. 148 as contemplated under the Act, as the same was, in a way or the other, within the control of the Assessing Officer, even after the prescribed time limit. 16. In this regard, the Appellant would also rely on the decision of the Hon'ble Karnataka High Court in "PCIT Central vs. Cherian Abraham" reported in 444 ITR 420, copy furnished during hearing on 07.01.2026, where the Hon'ble High Court has categorically stated that the provisions of Section 292BB have limited application viz-a-viz service of notice. That is, (I) Lack of Service, ....
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....LEDGE OF THE DEPARTMENT AND DO NOT CONSTITUTE ADDITIONAL EVIDENCE. 5. Notice issued u/s. 148 dated 29.03.2017 is as under: 6. The covering letter dated 07.04.2017 is as under:- 7. The assessee also filed a paper book dated 04.12.2025 as under: 8. The order dated 07.10.2025 passed u/s. 7(1) of Right to Information Act, 2005 [RTI] is as under: 9. The revenue has filed the paper book dated 04.02.2026 and submissions 02.01.2026 & 27.01.2026 are as under:- WRITTEN SUBMISSION ON BEHALF OF THE REVENUE DATED 02.01.2026 May it please your Honours, The Respondent-Revenue respectfully submits the following written submissions in response to the appeal filed by the Appellant-Assessee against the order of the Ld. Commissioner of Income Tax (Appeals) [CIT(A)] dated 28.08.2025, passed u/s. 250 of the Income-tax Act, 1961 (hereinafter "the Act"). The Revenue prays that the appeal be dismissed in its entirety, as the orders of the Assessing Officer (AO) dated 31.12.2018 and the CIT(A) are in accordance with law and facts. 1. Brief Background of the Case The Assessee, a retired Deputy Collector from the Tamil Nadu Government, filed a return....
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....e, which was not discharged. No material was overlooked; the order is legal and fact-based. Ground 2: The Ld. CIT(A) erred in dismissing the appeal without considering the request to call for a remand report from the AO on crucial legal issues. The request for a remand report (on issuance/service of notice u/s. 148 and assessment order) is misconceived. Under Rule 46A of the Income-tax Rules, 1962, additional evidence/remand is discretionary and not warranted absent prima facie merit or new facts. The Assessee participated in proceedings without objecting to the notice/order during assessment, attracting s.292BB (deeming proper service uponparticipation). The CIT(A) rightly held that s.149/153 limit issuance/making of notice/order, not service (R.K. Upadhyaya v. Shanabhai P. Patel (1987) 166 ITR 163 (SC)). No evidence of ante-dating was adduced; mere suspicion does not justify remand ICIT v. Durga Prasad More (1971) 82 ITR 540 (SC). The Assessee could have sought details via RTI but did not. CIT(A)'s refusal is justified. Ground 3: The Ld. CTT (A) erred in rejecting the request for remand report without show-causing the Asse....
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....erest income. Interest computation (Rs.4,25,796/- total) was derived directly from bank statements/entries, including SB interest (Rs.2,14,156/-) and FD interest (Rs.2,11,641/-). Assessee declared only Rs. 1,26,331/-, leading to shortfall of Rs. 2,99,465/-. Allegations of duplication/exaggeration (e.g. Rs. 23,282/-on Rs. 50,000/- FD) are baseless; figures align with periodic accruals/renewals. No reconciliation/interest certificates were provided to rebut. CIT(A) confirmed after perusal, as onus not discharged [CIT v. Durga Prasad More (supra)). 3. Prayer The Revenue respectfully prays that: The appeal be dismissed, upholding the orders of the AO and CIT(A). Any other relief deemed fit in the interest of justice. Place: Chennai, Date: 02.01.2026 WRITTEN SUBMISSION ON BEHALF OF THE REVENUE ( LEGAL GROUNDS) dated 27.01.2026 May it Please Your Honours, The Respondent-Revenue respectfully submits the following additional written submissions specifically addressing the Assessee's contention that the notice u/s. 148 of the Income-tax Act, 1961 dated 29.03.2017 was not "issued" before th....
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.... 2. The term "issued" has been judicially interpreted to mean the point when the notice is put in the course of transmission to the Assessee, and not when it is served or received. Service or receipt after the limitation period does not invalidate a notice issued within time. 3. The Hon'ble Supreme Court in R.K. Upadhyaya v. Shanabhai P. Patel (1987) 166 ITR 163 (SC)] held that "issue" of a notice occurs when it is signed and handed over for dispatch/posting, distinguishing it from "service." Once dispatched, the notice is issued, irrespective of delivery delays or returns. 4. In CIT. Major Tikka Khushwant Singh [(1995) 212 ITR 650 (SC)), the Apex Court ruled that a notice returned unserved does not negate its issuance if dispatched within time. 5. The Hon'ble Madras High Court, in whose jurisdiction this Tribunal sits, has consistently followed this in cases like Malavika Enterprises vs. Central Board of Direct Taxes [2022] 137 taxmam.com 398 (Madras), holding that the date of signing and dispatch prevails over service. 3. Strong Objections to the Assessee's Claim The Revenue vehemently objects to the Assessee's ....
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....belying any genuine belief in invalid issuance. 2. Raising this now, after CIT(A) dismissal, smacks of desperation to evade substantive additions (Rs.27,49,890/- unexplained deposits + Rs. 2,99,465/-interest shortfall), which stand unassailed on merits. 3. Courts deprecate such technical pleas without substance, as in Mayawati v. C77' (2011) 321 ITR 349 (Del)], where similar ante-dating allegations were rejected absent proof. (d) No Prejudice Caused; Proceedings Valid 1. Even assuming arguendo a minor dispatch delay (which is denied), no prejudice is caused as the Assessee fully participated and the assessment was completed within extended time u/s. 153(2). 2. The reassessment is de novo, and validity hinges on issuance, not perfection of initial service. 3. Notice cannot be invalidated as the merely on a clerical error which could be corrected under 292BB of the Act. (Sky Light Hospitality) 4. Human errors and mistakes cannot and should not nullify proceedings which are otherwise valid and no prejudice has been caused. This is the effect and mandate of S. 292B of the Act. 4. Prayer The Revenue pra....
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.... the notice was not issued in time. Incorrect service due to wrong address does not constitute valid service. Section 292BB applies only to defects in service, not to cases of non-issuance within limitation. In the present case, the notice remained within the control of the Assessing Officer beyond the limitation period. There is no evidence of valid issuance before 31.03.2017. Hence, the reassessment proceedings suffer from a jurisdictional defect. The reassessment proceedings are void ab initio, having been initiated beyond the statutory time limit. The assessee prays that the proceedings be quashed. 16. Per contra, the ld.DR for the revenue at the outset, submitted that the appeal filed by the Assessee is devoid of merit, both on legal grounds as well as on facts, and deserves to be dismissed in limine. She submitted that the Assessee's primary attack is on the validity of notice, alleging that it was not issued within limitation. This contention is factually incorrect and legally untenable. The notice is dated 29.03.2017, well before the limitation date of 31.03.2017. It was dispatched through speed post, and importantly the postal endorsement dated 31.03.2017 clearly shows ....
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.....2017, however the notice was returned back on 31.03.2017 with a mark "Insufficient Address Door number wanted hence return to sender". Again, the aforesaid notice was again sent to the assessee on 07.04.2017 with a covering letter having complete address however, without curing the defect in the notice and beyond the expiry date of limitation i.e; 31.03.2017. Therefore, the presumption u/s. 29 of the General Clauses Act will not be available to the revenue. It means that notice was never issued within the statutory period, hence time barred. The RTI response specifically supports the version of the assessee. In respect of the subsequent dispatch dated 07.04.2017, the same is clearly beyond the limitation date of 31.03.2017. However, it is equally well-settled that where the foundational fact of timely issuance is disputed, the burden lies on the Revenue to establish that the notice left its control within limitation. The absence of clear dispatch evidence creates a factual uncertainty which goes to the root of jurisdiction. Section 292BB cures defects in service of notice where the assessee has participated in proceedings without objection. However, it does not cure a jurisdiction....
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....hat "Insufficient address'. I'm herewith forwarding the notice to this address which is available in our records. Kindly acknowledge the receipt of the notice u/s 148 dated 29/03/2017. (J.RAJARAM) Income-tax Officer, Ward-2 (3), Erode. Encl .: As above 5. 1.08-1949 4.2001 7 262.10 Ball Pan Bank Persona Defar sale Property Passare/ Document 3 BEFORE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL, CHENNAI Kuttiappagounder Duraiyan - PAN: AECPD8036M Erode - 638004. Assessment Year: 2010-11 ITA No.2495/Chny/2025 - 'B' Bench 4.12.25. BX'B' Appellant INDEX FOR PAPER-BOOK: Particulars of Documents Page No. 1. Proof of Service and Order u/s.7 of RTI Act dated 07/10/2025 1-6 2. Letter dated 08/09/2025 from DGIT (Inv). Tamil Nadu and Puducherry transferring RTI Application u/s.6(3) of RTI Act to JAO 7-10 3. Acknowledgment of RTI Application filed online on 03/09/2025 11-12 4. RTI Application and Attachment dated 02/09/2025 filed on 03/09/2025 13-16 IT IS HEREBY CERTIFIED THAT THE DOCUMENTS FORMING PART OF THIS PAPERBOOK ARE WITHIN THE KNOWLEDGE OF THE DEPARTMENT AND IN FACT REPRESENT INFORMATION OBTAINED FROM THE DEPARTMENT ONLY UNDER THE RIGHT....
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....rder u/s 143(3) r.w.s. 147 dt. 31.12.2018 to the postal authorities iscurrently nottraceable in this office. However, on perusal of the system records in ITBA, it is seen that the date of the passing of the assessment order is recorded as 31.12.2018. Note: If digitally signed, the date of digital signature may be taken as date of document. ERODE-INCOME TAX OFFICE, Flat No: R2, Nallappa Street, Periyar Nagar, ERODE, Tamil Nadu, 638001 Email: [email protected], Document 5 5. No postal records is currently traceable in this office regarding the address to which the assessment order -was sent to. However," the assessment order -mentions Sri K.Duraiyan, S/o Kuttiappagounder with both the addresses, 19-VollanNagar, Perlyasemur Post, Erode - 638152, and 45/19-1, Arunachalam Veethi, Pursaivakkam, Chennai - 600007. The assessee has filed appeal before the CIT(A), by filing form 35 on 14/02/2019, in which he has acknowledged that he has received the order. Hence, information of the address in which the assessee received the order is in possession of the assessee. 6. Certified copy of screen shot of ITBA - Processing is attached as evidence of passing the ssessment Order....
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.... 08-06-2017 Kuttiappagounder Duraiyan 19,Duraianan Nagar, Periasemur PO Erode 638 004 To The Income Tax Officer Ward II (3) Erode PAN :- AECPD8036M Sub :- Notice U/s 148 of the Income Tax Act. Ref :- Your letter no. AECPD8036M dated 29.03.2017. Sir, This has reference to your notice u/s 148 of the I.T. Act, I would like to inform you that I have already submitted the I.T. Return for A.Y. 2010-2011 on 08.06.2017 vide SI. No .. I, therefore, request you to please treat the said return as a valid return against your above notice u/s 148 of the I.T. Act. Thanking you. Encl :- Xerox copy of return for the A.Y. 2010-2011. Yours Faithfully TAPAL FILED TY Name Honile No No of Pages (KDURAIAN) Document 10 J//t26, 4:51 PM webmail.incometax.gowin/lwo_startofayout/shell.html?lang=en-US43.0.3.4.0_24021652 Subject: Re: Calling for the details in the case of KUTTIAPPAGOUNDER DURAIYAN, PAN: AECPDB036M for the A.Y. - 2010-11 - reg. To: "CHENNAI ITO[ITAT] DR-2, CHENNAI" K DURAIYAN SCANNED COPY.pdf (852KB) 333915880141217.pdf (79KB) AECPD8036M_Issue Letter_1081498839[1]_07102025.pdf (200KB) Sir/Madam, Please find the attachments. The date ....
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....nn.com 146 (Delhi) 71-80 9 Abab Offshore Ltd. vs. Deputy Commissioner of Income-tax, Corporate Circle I(1), Chennai [2017] 78 taxmann.com 37 (Madras)[08-11-2016] 81-88 10 Subramaniam Rohini vs. Income-tax Officer, National Faceless Assessment Centre, Delhi [2024] 158 taxmann.com 180 (Madras)[03-11-2023] 89-102 11 Malavika Enterprises vs. Central Board of Direct Taxes [2022] 137 taxmann.com 398 (Madras)/[2022] 287 Taxman 693 (Madras)/[2022] 445 ITR 651 (Madras)[29-03-2022] 103-112 12 Commissioner of Income-tax, Bathinda vs. Panchvati Motors (P.) Ltd. [2011] 12 taxmann.com 111 (Punjab & Haryana)/[2011] 200 Taxman 136 (Punjab & Haryana) (Mag.)/[2011] 243 CTR 189 (Punjab & Haryana)[03-05-2011] 113-118 13 Commissioner of Income-tax vs. Rajbir Singh [2012] 20 taxmann.com 604 (Punjab & Haryana)/[2011] 243 CTR 185 (Punjab & Haryana)[06-12-2010] 119-122 14 Commissioner of Income-tax, Central Circle vs. Sri Durga Enterprises [2014] 44 taxmann.com 442 (Karnataka)/[2015] 231 Taxman 886 (Karnataka)[11-02-2014] 123-128 Document 13 15 GKN Driveshafts (India) Ltd. vs. Income-tax Officer [2002] 125 Taxman 963 (SC)/[2003] 259 ITR 19 (SC)/[2003] 179 CTR 11 (SC)[25-11-2002] 129-1....
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....mputer resource out of control of the Assessing Officer on that date itself, but served on 01/04/2021. In such circumstances, the High Court held that the date of sending to computer resource out of control of the Assessing Officer is the date of issue and date of receipt is irrelevant. This decision essentially speaks about Electronic Issue and Service and in spirit, the Appellant also submits that the date of handing it over to delivery agent [whether mail server or postal authority) would be the date of issue and hence, reliance on this is also out of context and does not worsen the case of the Appellant. d) CIT vs. Laxman Das Khandelwal - In this case, the Apex Court examined scope of Section 292BB in the context of Notice u/s.143(2) and held that Section 292BB saves only infirmities in manner of service and not complete absence of notice. Reliance on this decision is irrelevant, as the Appellant has already established that Section 292 BB does not apply to lack of issue or belated issue of notice, but only service of notice. In fact, the Appellant also relied on Karnataka HC Order in 'Cherian Abraham', which discussed on scope and import of Sec.292BB. Hence, this decision i....
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.... Order passed, it is evident that "no records are available to prove the date on which the Notice u/s.148 dated 29/03/2017 was handed over to the postal authorities". However, the RTI Order refers to Postal Cover returned on 31/03/2017 with remarks "Insufficient address. Door Number wanted. Hence, return to sender." 3. Further, with reference to papers filed by the Ld. DR in the course of earlier hearing, there is a Mail Communication dated 07/01/2026 issued by the Ld. AO, where it is stated, "on the returned cover (attached) on the 148 notice, the remarks of the postal authority is dated 31.03.2017, and hence, the notice u/s 148 was dispatched before 31.03.2017 most probably on the same day as the date of the notice." 4. By relying on this communication, the Revenue is trying to show that the notice u/s. 148 was "most probably dispatched on the same day as the date of the notice". The language of the Assessing Officer clearly shows that there is no concrete proof for such averment made and it is only a guesswork, which cannot override requirements of law. 5. Further, on perusal of Postal Return Cover furnished by Ld. DR during the earlier hearing. it is clear that both pa....
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....148 dated 31/03/2018 was handed over to processor on the same date, which was returned back on 06/04/2018 and then, subsequently, it was served through mail on 18/04/2018. In such circumstances, the Hon'ble High Court quashed the Reassessment Proceedings for AY 2011-12 as time barred, as Notice u/s.148 served on 18/04/2018 was not issued within a period of six years from the end of limitation period. While taking this view, the Hon'ble High Court distinguished its decision in 'Aban Offshore Ltd and relied on Apex Court's Order in 'CCE vs. Hari Chand Shri Gopal' on Doctrine of Substantial Compliance and Intended Use. 11. Coming to the instant case, the Appellant would refer to Form 26AS available in the IT Portal records for AYs 20009-10 and 2010-11, which show address of the Appellant. However, the Notice u/s. 148 was sent "without door number". 12. In this regard, applying Doctrine of Substantial Compliance and Intended Use referred by the Hon'ble Madras High Court, the Appellant would submit that the Notice u/s.148 dated 29/03/2017 was given to postal authority on 31/03/2017 only [as ascertained from postal stamps] not with the intent to leave the notice beyond the control ....