PRAVINBHAI JETHABHAI PATEL,KHEDA vs. THE ITO, WARD-5, NADIAD

That the appellant has neither committed default of Sec. 210 nor made any default in payment of advance tax and therefore unwanted interest charged u/s 234A 234B and 234C requires to be deleted.

The assessee has raised following additional grounds of appeal:- “That the order passed u/s 148 of the IT Act, 1961 dated 26.12.2016 without issue of notice u/s 142(2) of the Income Tax Act, 1961, therefore the re-assessment order passed is invalid and required to be quashed.”

The brief facts of the case are that the assessee is an individual engaged in agricultural activity. For the year under consideration, the assessee had not filed his return of income as his agricultural and interest income were below taxable limits. Based on information received, the Assessing Officer noted cash deposits of Rs.25,69,000/- and term deposits of Rs.30,00,000 in the assessee’s bank account during FY 2010-11. 4.1 The case the assessee was reopened u/s 147, and notice u/s 148 was issued on 27.03.2018. In response, the assessee filed his return declaring income of Rs.75,844/-. During the assessment proceedings, it was submitted that the assessee sold agricultural land along with co-owners for a total consideration of Rs.83,34,500/-, of which the assessee’s share was Rs.41,67,250/-. While Rs.4,88,250/- was received by cheque, as reflected in the registered sale deed; the balance amount of Rs.36,79,000/- was received in cash and deposited in the bank.

2 The Assessing Officer held that since the registered sale deed reflected only Rs.4,88,250/-, the remaining Rs.36,79,000/- was without consideration and, therefore, brought it to tax u/s 56(2)(vii)(a) of the Act. Asst. Year : 2011-12 - 3–

Aggrieved by the order of the Assessing Officer, the assessee preferred an appeal before the Ld. CIT(A) who confirmed the addition to the extent of Rs.36,29,000/-, after allowing the standard deduction of Rs.50,000/-.

Aggrieved by the order of the Ld. CIT(A), the assessee is now in appeal before the Tribunal.

During the course of hearing before us, the Ld. AR contended that no valid notice u/s 143(2) was served before finalization of the reassessment order u/s 147 of the Act. He submitted that though the Assessing Officer mentions issuance of notice u/s 143(2) dated 11.07.2018, there is no evidence on record, nor reflected it on the e-filing portal. The Ld. AR further submitted that inspite of repeated requests by the assessee requesting to provide a copy of the said notice, nothing was supplied. In this regard, the Ld. AR relied on the judgement of Hon’ble Supreme Court in the case of ACIT v. Hotel Blue Moon (321 ITR 362), wherein the Hon’ble Court has categorically held that issuance of notice u/s 143(2) is mandatory even in reassessment proceedings. The Ld. AR also relied upon the judgment of Hon’ble juri ictional High Court in the case of CIT v. Sukhini P. Modi (367 ITR 682) in this regard.

The Ld. DR, on the other hand, could not controvert the legal contentions made by the Ld. AR, but simply relied upon the orders of the authorities below.

We have heard the rival submissions and the material available on record. We find that, in the present case, the Revenue has failed to produce any evidence to establish that notice u/s 143(2) dated 11.07.2018 was served upon the assessee. It is also a fact on record that no such notice is available either on the ITBA or the e-filing portal, and even the requests made Asst. Year : 2011-12 - 4–

As the reassessment proceedings are held to be invalid, the other grounds raised on merits have become academic and are not adjudicated upon.

In the result, the appeal of the assessee is allowed.