KALAIVANI PRESS PVT. LTD.,TIRUPPUR vs. ITO, COIMBATORE

आदेश / O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER

Assessee in this appeal assails reopening done for the impugned assessment year.

ITA No. 862/Mds/2017. :- 2 -: for reopening was not served to the assessee on or before 31.03.2014.

As per ld. Authorised Representative since the ld. Commissioner of Income Tax (Appeals) did not dispose of this ground, further appeal was moved before the Tribunal and this Tribunal in had held as under:-

"Though the Assessing Officer has mentioned that notice under section "148 of the act was issued, in the assessment order, the Assessing Officer has not mentioned the date of notice or date of service. Before the Id. CIT(A), the assessee has mentioned that the reopening of assessment relating to the assessment year 2007-08 should have been done on or before 31.03.2014. But, the Assessing Officer has obtained approval for reopening of assessment from the JCIT only on 28.03.2014 i.e. Friday. In the assessment order; the Assessing Officer has stated that "notice under section 148 was issued" safely without mentioning the date. When the reopening of assessment is likely getting barred by 31.03.2014, when the Assessing Officer has issued the 148 notice to the assessee is a million dollar question because 29th & 30th March 2014 are being closed holidays. In the first appellate order, the Id. CIT(A) has not adjudicated the specific ground raised by the assessee with regard to service of notice under section 148 of the Act. Under these facts and circumstances, we set aside the order of the Id. CIT(A) and direct him to examine the issue as to whether the assessee was actually issued/served notice under section 148 of the Act since the approval for reopening of assessment was obtained on 28.03.2014 being Friday. He is further directed to call for the details/explanation as to whether 148 notice and 143(2)/142(1) notices have been issued prior to service of summon under section 131 of the Act on 19.12.2014 since there was no mention in the assessment order having issued/served all the above notices to the assessee before concluding the reassessment under section 147 of the Act If the Assessing Officer has failed to issue/serve the above notice(s) to the assessee, then the assessment order passed under section 147 of the Act should be held as invalid and quashed, accordingly’’.

not served. According to the ld. Authorised Representative, reply of the ld. Assessing Officer was as under:-

’It is verified from the assessment records that the notice u/s 148 was served by "affixture" by the Inspector of Income Tax attached to Ward-III(1) Coimbatore, on 28.03.2014 at Door No.244, Mettupalayam Road, Coimbatore-641 043. A photocopy of the Panchnama for affixture of the notice that was submitted by the Inspector is enclosed herewith for reference" . As per ld. Authorised Representative, ld. Commissioner of Income Tax (Appeals) had held that assessee having co-operated with the ld. Assessing Officer and assessee having not challenged service of notice during the course of assessment proceedings any lacuna stood cured by the Sec. 292BB of the Act. According to the ld. Authorised Representative, ld. Commissioner of Income Tax (Appeals) erroneously held that re-assessment was validly initiated. Argument of the ld. Authorised Representative was that notice u/s. 148 of the Act was never issued on the assessee. Further, according to him, it had now come to his knowledge that a notice was issued and served on Shri. N.

Parameshwaran in his residential address and this, as per the ld. Authorised Representative, could not be deemed as a valid notice on the assessee company. According to ld. Authorised Representative, this was a serious jurisdictional error and could not be cured u/s. 292BB of the Act.

Per contra, ld. Departmental Representative supporting the 3.

orders of the authorities below submitted that assessee having co-

ITA No. 862/Mds/2017. :- 4 -: operated before the ld. Assessing Officer in the reassessment proceedings, now could not turn back and say that notice u/s. 148 of the Act was not served on it.

Notice under Section 148 of the Income Tax Act, 1961 P.A. No Nil Office of the ITO Ward III(1) Dated 28.03.2014 To Shri. N. Parameshwaran, N. No.244, Mettupalayam Road, Coimbatore.

Whereas I have reason to believe that your income chargeable to tax for the assessment year 2007-08 has escaped assessment within the4 meaning of Section 147 of the Income Tax Act, 1961.

I therefore, propose to assess/re-assess the income for the said assessment Recomputed/loss/ depreciation allowance You to deliver to me within 30 days from the date of service of this notice, a return in the prescribed form of your income for the said assessment year.

This notice is being issued after obtaining the necessary satisfaction of the Commissioner of Income Tax.

Name: R. VIDYABHARAT ITO Ward III(1) Coimbatore.

ITA No. 862/Mds/2017. :- 5 -:

It may be true that Shri. N. Parameshwaran was the Managing Director of the Assessee company. Address of the assessee company as it appears in the assessment order reads as under:-

‘’M/s. Kalaivani Press Private Limited, C/o. Shri. N. Parameshwaran, Managing Director, 2/674 G, Vivekanda 4th Street, S.R. Nagar, Tirupur’’. Thus neither a notice has been issued to the assessee nor the notice has been served in the address of the assessee company. Even PAN of the assessee company is not mentioned. Sec. 292BB of the Act relied on by the ld. Departmental Representative is reproduced hereunder:-

‘’Where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was (a) not served upon him ; or (b) not served upon him in time ; or (c) served upon him in an improper manner : ‘’Provided that nothing contained in this section shall apply whether the assessee has raised such objection before the completion of such assessment or reassessment’’. The said section deals with a contingency where service of notice is disputed. However, in our opinion, where a notice is not issued at all,

ITA No. 862/Mds/2017. :- 6 -: the question of service becomes irrelevant. Notice that has been produced before us by the Revenue clearly show that it was not in the name of the assessee company or its address. There being no notice issued in the name of the assessee company, it hardly matters whether an irrelevant notice was served in time or served by affixture.

There being no valid issue of notice u/s.148 of the Act on the assessee company, the re-assessment proceedings are invalid. Ex-consequenti the reassessment order is set aside.

In the result, the appeal of the assessee is allowed. 5.

Order pronounced on Wednesday, the 6th day of September, 2017, at Chennai.