PATEL HIRUBHAI PURSHOTTAMDAS,HUF,AHMEDABAD vs. ITO, WARD-3,, MEHSANA

This assessee’s appeal for A.Y. 2010-11, arises from order of the CIT(A), Gandhinagar, Ahmedabad dated 12-07-2018, in proceedings under section 144 r.w.s. 147 of the Income Tax Act, 1961; in short “the Act”.

The assessee has raised following grounds of appeal:- “The Learned A.O. erred in passing an order u/s, 144 r.w.s. 147 dated 18- 12-2017 and learned C.I.T. (A) G.N.R. also erred in confirming the said order. Your appellant submits that on the facts of the case the assessment order passed u/s. 144 r.w.s. 147 dated 18-12-2017 is I arbitrary, unwarranted and bad in law and the same should be cancelled. The learned A.O. erred in reopening the assessment by issue of notice u/s. 148 dated 31-03-2017. Your appellant submits that no notice u/s. 148 dated 31- 03-2017 was served upon H.U.F. or its living members of H.U.F. Your appellant submits that in absence of proper service of notice u/s, 148 dated 31-03-2017, the reopening of assessment u/s. 148 and passing the order u/s. 144 r.w.s. 147 dated 18-12-2017 is bad in law and the same should be cancelled. Without prejudice to above your appellant submits that the learned A.O. erred in holding that the notices u/s. 142(1) and 144 were issued and served and the same were not complied and learned C.I.T. (A) also erred in confirming the same. Your appellant submits that on the facts of the case the above notices were not served as per the provisions of I.T. law on appellant H.U.F. or its living members. In absence of such proper service of above notices, the assessment order passed u/s. 144 r.w.s. 147 and confirmed by learned C.I.T.(A) is bad in law and same should be cancelled. Without prejudice to above your appellant submits that the learned A.O. is not justified in making the addition of Rs. 5,15,800/- u/s. 69 and unexplained cash deposit of Rs. 84,070/- and learned C.I.T.(A) erred in confirming the same. Your appellant submits that on the facts of the case the learned A.O. is not justified in making the said addition. Your appellant submits that it be so deleted now.”

All the grounds of appeal of the assessee are inter-connected, therefore, for the sake of convenience these are adjudicated together as follows:-

During the course of appellate proceedings before us, the ld. counsel has vehemently contended that proper service of notice has not been effected u/s. 148 upon the assessee since at the given residential address no member of the HUF was residing after the death of the Karta of the HUF and the wife of the Karta. The two sons who were members of the HUF were living in USA. Therefore, notice has not been served on the living member of the HUF and contended that assessment order made u/s. 144 of the act should be cancelled. The ld. counsel has also filed paper book comprising detail of submission made before the CIT(A) and copies of bank passbook of the assessee. On the other hand, ld. Departmental Representative contended that notices pertained to the assessment proceedings were issued at the address given by the assessee and assessee has not updated the address for communication.

Heard both the sides and perused the material on record. Without reiterating the facts as elaborated above, assessment in the case of the Page No 4 Patel Hirubhai Purshottamdas HUF assessee was made ex-parte u/s. 144 r.w.s. 147 of the act as no compliance was made during the course of assessment in spite of issuing a number of notices. The assessee has contended that notice u/s. 148 dated 31st March, 2017 was not served upon living member of the HUF and the addition made by the Assessing Officer was unjustified. It is undisputed fact that notice u/s. 148 of the act was served on the address available with the Assessing Officer. The assessee has not communicated any alternative address as provided in rule 127 of the I.T. Rule, 1962. Therefore, notice was served on the address for communication available with the income tax department as laid down in the rule 127 of the I.T. Rule, 1962. Since no one was on behalf of the assessee was available at the given address, therefore, notice was served by affixture according to the provision of sub-section (1) of section 282 of the Income Tax Act, 1961. In the light of the above facts and findings, we do not find any infirmity on this issue in the order of ld. CIT(A) that Assessing Officer has served the notice by affixture on the last known address of the assessee. Therefore, this ground of appeal of the assessee stands dismissed.

In the result, the appeal of the assessee is allowed for statistical purpose.