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The Tax Publishers Prominent Insurance Brokers (P) Ltd. v. ITO [ITA No. 818/Del/2014, dt. 29-4-2016] : 2016 TaxPub(DT) 2188 (Del-Trib) Service of notice of reassessment for validation of proceedings *Facts:* Assessee was alleged to have been served a reassessment notice at a wrong address, which was proved by the assessee was incorrect and the department was in possession of the correct address. Thus challenged the whole reassessment requesting for invalidation of the same. This was rejected by Commissioner (Appeals). On further appeal: Held in favour of the assessee that for reassessment to be held valid issue of notice is not sufficient it has to be served at the correct place. The onus falls on the department to prove the proper service as per section 282. Since this was not proved the reassessment was held to be bad. CIT v. Chetan Gupta (I.T.A. No. 72 of 2014), Dated 15-9-2015 applied: "(i) Under Section 148 of the Act, the issue of notice to the Assessee and service of such notice upon the Assessee are jurisdictional requirements that must be mandatorily complied with. They are not mere procedural requirements. (ii) For the assessing officer to exercise jurisdiction to reopen an assessment, notice under Section 148 (1) has to be mandatorily issued to the Assessee. Further the assessing officer cannot complete the reassessment without service of the notice so issued upon the Assessee in accordance with Section 282 (1) of the Act read with Order V Rule 12 CPC and Order III Rule 6 CPC. (iii) Although there is a change in the scheme of Sections 147, 148 and 149 of the Act from the corresponding Section 34 of the 1922 Act, the legal requirement of service of notice upon the Assessee in terms of Section 148 read with Section 282 (1) and Section 153 (2) of the Act is a jurisdictional pre-condition to finalizing the reassessment. (iv) The onus is on the Revenue to show that proper service of notice has been effected under Section 148 of the Act on the Assessee or an agent duly empowered by him to accept notices on his behalf. In the present case, the Revenue has failed to discharge that onus. (v) The mere fact that an Assessee or some other person on his behalf not duly authorized participated in the reassessment proceedings after coming to know of it will not constitute a waiver of the requirement of effecting proper service of notice on the Assessee under Section 148 of the Act. (vi) Reassessment proceedings finalised by an assessing officer without effecting proper service of notice on the Assessee under Section 148 (1) of the Act are invalid and liable to be quashed. (vii) Section 292 BB is prospective. In any event the Assessee in the present case, having raised an objection regarding the failure by the Revenue to effect service of notice upon him, the main part of Section 292 BB is not attracted."

The Tax Publishers

Prominent Insurance Brokers (P) Ltd. v. ITO [ITA No. 818/Del/2014, dt. 29-4-2016] : 2016 TaxPub(DT) 2188 (Del-Trib)

Service of notice of reassessment for validation of proceedings

Facts:

Assessee was alleged to have been served a reassessment notice at a wrong address, which was proved by the assessee was incorrect and the department was in possession of the correct address. Thus challenged the whole reassessment requesting for invalidation of the same. This was rejected by Commissioner (Appeals). On further appeal:

Held in favour of the assessee that for reassessment to be held valid issue of notice is not sufficient it has to be served at the correct place. The onus falls on the department to prove the proper service as per section 282. Since this was not proved the reassessment was held to be bad.

CIT v. Chetan Gupta (I.T.A. No. 72 of 2014), Dated 15-9-2015 applied:

"(i) Under Section 148 of the Act, the issue of notice to the Assessee and service of such notice upon the Assessee are jurisdictional requirements that must be mandatorily complied with. They are not mere procedural requirements.

(ii) For the assessing officer to exercise jurisdiction to reopen an assessment, notice under Section 148 (1) has to be mandatorily issued to the Assessee. Further the assessing officer cannot complete the reassessment without service of the notice so issued upon the Assessee in accordance with Section 282 (1) of the Act read with Order V Rule 12 CPC and Order III Rule 6 CPC.

(iii) Although there is a change in the scheme of Sections 147, 148 and 149 of the Act from the corresponding Section 34 of the 1922 Act, the legal requirement of service of notice upon the Assessee in terms of Section 148 read with Section 282 (1) and Section 153 (2) of the Act is a jurisdictional pre-condition to finalizing the reassessment.

(iv) The onus is on the Revenue to show that proper service of notice has been effected under Section 148 of the Act on the Assessee or an agent duly empowered by him to accept notices on his behalf. In the present case, the Revenue has failed to discharge that onus.

(v) The mere fact that an Assessee or some other person on his behalf not duly authorized participated in the reassessment proceedings after coming to know of it will not constitute a waiver of the requirement of effecting proper service of notice on the Assessee under Section 148 of the Act.

(vi) Reassessment proceedings finalised by an assessing officer without effecting proper service of notice on the Assessee under Section 148 (1) of the Act are invalid and liable to be quashed.

(vii) Section 292 BB is prospective. In any event the Assessee in the present case, having raised an objection regarding the failure by the Revenue to effect service of notice upon him, the main part of Section 292 BB is not attracted."