Whether service of notice u/s 148 is sine qua non for completing the assessment u/s 147?

Link of full case : https://taxlawsonline.com/agtlol.html...

[2024] 467 ITR 558 (Guj)
[IN THE GUJARAT HIGH COURT]

ISHWARBHAI THAKORBHAI PATEL
v.
INCOME-TAX OFFICER

BHARGAV D. KARIA and NIRAL R. MEHTA JJ.

January 1, 2024.

Playlist: 148, 292BB, Service of Notice

Sec 148: Issue of notice where income has escaped assessment
Sec 292BB: Notice deemed to be valid in certain circumstances

Assessment Year: 2012-13

Favouring: Assessee, person

Question: Whether service of notice u/s 148 is sine qua non for completing the assessment u/s 147?

1) In the case on hand, the assessee has no PAN and hence this is a case of non-Pan.

2) The revenue is justified in taking cognizance of the sale transaction of the agriculture land, which at one point of time was owned by the assessee herein.

3) The Agriculture land in question is situated at Kalol District, Gandhinagar.

4) The only mistake that the Department committed was to dispatch the notice under section 148 of the Act to the address at Kalol, Gandhinagar and not to the residential address of the writ applicant at village : Khorsam, Taluka: Chanasma, District : Patna.

5) In such circumstances, it is obvious that the writ applicant could never be said to have received such notice.

6) In the result, this writ application succeeds and is hereby allowed.

7) The order disposing of the objections dated 01.11.2018 filed by the assessee against the reopening proceedings is hereby quashed and set aside.

8) To assume the jurisdiction u/s 147 is mandatorily to be served within the limitation prescribed u/s 149 of the Act.

9) It was further pointed out that admittedly, the said notice, even if assumed to have been served as per the observations made in the impugned order, is on a wrong address and thereby, according to learned advocate for the petitioner, there cannot be any valid service of notice.

10) The notice u/s 148 for the purpose of initiating reassessment proceedings is not a mere procedural requirement.

11) The service of the prescribed notice on the assessee or his authorised representative is a condition precedent to the validity of any reassessment made u/s 147.

12) The legal position is that the service of notice u/s 148 is a jurisdictional requirement for completing the reassessment.

13) When the statute provides that a notice should be served in a particular mode, it was not possible to hold that there had been a proper service of notice merely from the fact that the person to whom the notice had been addressed had received the notice through some other source or that he had become aware of the contents of the notice. . . . there had not been a due service of notice as contemplated by the provisions of the Code of Civil Procedure dealing with service of notice or summons.

14) Therefore, the service of the notice on the manager who had no written authority to receive the same could not be held to be a proper service on the assessee.

15) The High Court in Dina Nath v. CIT referred to order V rule 12 of the civil procedure code as well as order III rule 6 of the civil procedure code.

16) It therefore concluded that notice must be served personally upon the individual or upon his agent duly authorised in terms of order III rule 6 of the civil procedure code.

17) There is sufficient judicial authority for the proposition that the burden of showing that service of notice has been effected on the assessee or his duly authorized representative is on the Revenue.

18) The date of issue of notice would be the date on which the same is handed over for service to the proper officer, i. e., the postal department.

19) Merely signing the notice on 31st March cannot be equated with issuance of notice u/s 149.

20) Till the point of time the envelopes are properly stamped with adequate value of postal stamps, it cannot be stated that process of issue is complete.

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Link for some important videos:

1) WHETHER TRIBUNAL CAN REMAND MATTER IN ENTIRETY WHERE DEPARTMENT DID NOT FILE CROSS APPEALS?- https://www.youtube.com/watch?v=gkqMk...

2) WHETHER ASSESSEE HAS ALSO TO CHALLENGE THE FINDINGS OF THE A.O THAT NOTICE HAS BEEN SERVED?- https://www.youtube.com/watch?v=XbZWh...

3) WHETHER EXTENDED TIME LIMIT U/S 149(1)(b) CAN BE USED ON THE BASIS OF SALES CONSIDERATION U/S 48?- https://www.youtube.com/watch?v=WuRt9...

4) WHETHER NOTICE SENT TO SECONDARY EMAIL IS VALID IF NOT SENT TO PRIMARY E-MAIL U/S 148?- https://www.youtube.com/watch?v=aAzHE...

5) WHETHER ENTRIES IN BOOKS OF ACCOUNTS CONCLUSIVE TO DETERMINE TAXABLE INCOME OF ASSESSEE?- https://www.youtube.com/watch?v=Rx8JQ...