IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 560/AGRA/2012 ASSTT. YEAR : 2000-01 ASSTT. /DY. C.I.T., VS. LATE SRI SATISH PRAKASH MITTAL, CENTRAL CIRCLE, AGRA. THROUGH L/H SMT. SHEELA RA NI MITTAL, 29-30, GANESH NAGAR, FIROZABAD. (PAN: ABWPM 1075 G) C.O. NO. 06/AGRA/2013 (IN ITA NO. 560/AGRA/2012) ASSTT. YEAR : 2000-01 LATE SRI SATISH PRAKASH MITTAL, VS. ASSTT. /DY. C. I.T., THROUGH L/H SMT. SHEELA RANI MITTAL, CENTRAL CIRCL E, AGRA. 29-30, GANESH NAGAR, FIROZABAD. ITA NO. 561/AGRA/2012 ASSTT. YEAR : 2000-01 ASSTT. /DY. C.I.T., VS. SHRI SATISH PRAKASH MITT AL (HUF), CENTRAL CIRCLE, AGRA. 29-30, GANESH NAGAR, FIROZ ABAD. (PAN: AABHS 6307 P) C.O. NO. 07/AGRA/2013 (IN ITA NO. 561/AGRA/2012) ASSTT. YEAR : 2000-01 SHRI SATISH PRAKASH MITTAL (HUF), VS. ASSTT. /DY. C .I.T., 29-30, GANESH NAGAR, FIROZABAD. CENTRAL CIRCLE, AG RA. ITA NO. 554/AGRA/2012 ASSTT. YEAR : 2000-01 ASSTT. /DY. C.I.T., VS. SHRI SANJAY PRAKASH MITT AL, CENTRAL CIRCLE, AGRA. 29-30, GANESH NAGAR, FIROZ ABAD. (PAN: ADDPM 9611 R) ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 2 C.O. NO. 04/AGRA/2013 (IN ITA NO. 554/AGRA/2012) ASSTT. YEAR : 2000-01 SHRI SANJAY PRAKASH MITTAL, VS. ASSTT. /DY. C.I.T. , 29-30, GANESH NAGAR, FIROZABAD. CENTRAL CIRCLE, AG RA. ITA NO. 555/AGRA/2012 ASSTT. YEAR : 2000-01 ASSTT. /DY. C.I.T., VS. SMT. SHEELA RANI MITTAL, CENTRAL CIRCLE, AGRA. 29-30, GANESH NAGAR, FIROZ ABAD. (PAN: AJOPM 1130 G) C.O. NO. 08/AGRA/2013 (IN ITA NO. 555/AGRA/2012) ASSTT. YEAR : 2000-01 SMT. SHEELA RANI MITTAL, VS. ASSTT. /DY. C.I.T., 29-30, GANESH NAGAR, FIROZABAD. CENTRAL CIRCLE, AG RA. ITA NO. 556/AGRA/2012 ASSTT. YEAR : 2000-01 ASSTT. /DY. C.I.T., VS. SMT. RAGINI MITTAL, CENTRAL CIRCLE, AGRA. W/O SHRI SANJEEV PRAKASH M ITTAL, 29-30, GANESH NAGAR, FIROZABAD. (PAN: AJOPM 1131 H) C.O. NO. 09/AGRA/2013 (IN ITA NO. 556/AGRA/2012) ASSTT. YEAR : 2000-01 SMT. RAGINI MITTAL, VS. ASSTT. /DY. C.I.T., W/O SHRI SANJEEV PRAKASH MITTAL, CENTRAL CIRCLE, AGRA 29-30, GANESH NAGAR, FIROZABAD. ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 3 ITA NO. 557/AGRA/2012 ASSTT. YEAR : 2000-01 ASSTT. /DY. C.I.T., VS. SHRI SANJEEV PRAKASH MIT TAL, CENTRAL CIRCLE, AGRA. 29-30, GANESH NAGAR, FIROZ ABAD. (PAN: AHHPM 6020 C) C.O. NO. 02/AGRA/2013 (IN ITA NO. 557/AGRA/2012) ASSTT. YEAR : 2000-01 SHRI SANJEEV PRAKASH MITTAL, VS. ASSTT. /DY. C.I.T ., 29-30, GANESH NAGAR, FIROZABAD. CENTRAL CIRCLE, AG RA. ITA NO. 558/AGRA/2012 ASSTT. YEAR : 2000-01 ASSTT. /DY. C.I.T., VS. SHRI SANJEEV PRAKASH MIT TAL (HUF), CENTRAL CIRCLE, AGRA. 29-30, GANESH NAGAR, FIROZ ABAD. (PAN: AABHS 6304 Q) C.O. NO. 03/AGRA/2013 (IN ITA NO. 558/AGRA/2012) ASSTT. YEAR : 2000-01 SHRI SANJEEV PRAKASH MITTAL (HUF), VS. ASSTT. /DY. C.I.T., 29-30, GANESH NAGAR, FIROZABAD. CENTRAL CIRCLE, AG RA. ITA NO. 559/AGRA/2012 ASSTT. YEAR : 2000-01 ASSTT. /DY. C.I.T., VS. SHRI SANJAY PRAKASH MITT AL (HUF), CENTRAL CIRCLE, AGRA. 29-30, GANESH NAGAR, FIROZ ABAD. (PAN: AAFHS 9534 L) ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 4 C.O. NO. 05/AGRA/2013 (IN ITA NO. 559/AGRA/2012) ASSTT. YEAR : 2000-01 SHRI SANJAY PRAKASH MITTAL (HUF), VS. ASSTT. /DY. C .I.T., 29-30, GANESH NAGAR, FIROZABAD. CENTRAL CIRCLE, AG RA. (APPELLANTS) (RESPONDENTS) REVENUE BY : SHRI WASEEM ARSHAD, SR. D.R. ASSESSEE BY : SHRI SAHIB P. SATSANGEE, C.A. DATE OF HEARING : 19.03.2013 DATE OF PRONOUNCEMENT OF ORDER : 04.04.2013 ORDER PER BHAVNESH SAINI, J.M.: ALL THE DEPARTMENTAL APPEALS AND CROSS-OBJECTIONS ABOVE IN THE CASE OF VARIOUS ASSESSEES ARE DIRECTED AGINST THE COMMON OR DER OF LD. CIT(A)-I, AGRA DATED 22.06.2012 FOR THE ASSESSMENT YEAR 2000-01. 2. THE REVENUE IN ALL THE DEPARTMENTAL APPEALS AGAI NST VARIOUS ASSESSEES CHALLENGED THE DELETION OF ADDITION OF RS.10,00,000 /- MADE ON ACCOUNT OF UNEXPLAINED GIFTS U/S. 68 OF THE IT ACT WHEREAS ALL THE THE ASSESSEES HAVE FILED THEIR CROSS-OBJECTIONS CHALLENGING THE IMPUGNED ORDER OF LD. CIT(A) IN CONFIRMING THE VALIDITY OF REOPENING OF THE ASSESSMENT U/S. 147 OF THE IT ACT. DURING THE COURSE OF ARGUMENTS, IT WAS ELABORATED THAT THE ASSESSEE CHAL LENGED THE VALIDITY OF REOPENING OF ASSESSMENTS - THAT THERE WAS NO ESCAPEMENT OF IN COME; THAT THERE WAS NO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE ALL THE TRU E AND MATERIAL FACTS RELATING TO ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 5 ASSESSMENT AND THAT ASSUMPTION OF JURISDICTION BY T HE AO U/S. 148 OF THE IT ACT IS BAD IN LAW BECAUSE THE NOTICE U/S. 148 HAVE NOT BEE N ISSUED AND SERVED UPON THE ASSESSEES VALIDLY IN ACCORDANCE WITH LAW. 3. THE LD. REPRESENTATIVES OF BOTH THE PARTIES SUBM ITTED THAT THE ISSUES ARE SAME IN ALL THE DEPARTMENTAL APPEALS AND THE CROSS-OBJEC TIONS FILED BY THE ASSESSEES AND BOTH THE PARTIES MAINLY ARGUED IN THE CASE OF LATE SHRI SATISH PRAKASH MITTAL IN ITA NO. 560/AGR/2012 AND CROSS-OBJECTION NO. 06/AGRA/20 13 AND SUBMITTED THAT ISSUES AND FACTS ARE IDENTICAL IN THE REMAINING CASES. THE REFORE, FOR THE PURPOSE OF DISPOSAL OF ALL THE ABOVE MATTERS OF DIFFERENT ASSE SSEES, WE TAKE UP THE CASE IN THE NAME OF ASSESSEE, LATE SHRI SATISH PRAKASH MITTAL. ITA NO. 560/AGRA/2012 & C.O. NO. 06/AGRA/2013: (LATE SHRI SATISH PRAKASH MITTAL): 4. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE RETU RN OF INCOME WAS FILED ON 28.03.2001 AT INCOME OF RS.3,68,969/-. ASSESSMENT W AS COMPLETED AT AN INCOME OF RS.8,68,969/- U/S. 143(3)/147 ON 30.03.2006 AFTER M AKING ADDITION OF RS.5,00,000/- ON ACCOUNT OF UNEXPLAINED GIFT RECEIVED FROM SHRI S ANJAY MOHAN AGARWAL. HOWEVER, THE ADDITION HAS BEEN DELETED BY THE LD. C IT(A)-II, AGRA. THEREAFTER INFORMATION WAS RECEIVED FROM INVESTIGATION WING, G HAZIABAD THAT THE ASSESSEE HAD TAKEN ACCOMMODATION ENTRY OF RS.10,00,000/- IN THE SHAPE OF GIFT FROM SAME ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 6 SHRI SANJAY MOHAN AGARWAL, NEW DELHI. ON RECEIPT OF THIS INFORMATION FROM THE INVESTIGATION WING, A NOTICE U/S. 148 DATED 30.03.2 007 WAS ISSUED AFTER RECORDING THE REASONS AND TAKING NECESSARY APPROVALS AT 33-CI RCULAR ROAD, FIROZABAD. THE NOTICE WAS SENT THROUGH REGISTERED POST/SPEED POST BUT THE SAME WAS RECEIVED BACK UN-SERVED WITH THE REMARKS OF THE POSTAL AUTHORITIE S ADDRESSEE IS NOT AVAILABLE ON THE GIVEN ADDRESS. THEREAFTER NOTICE WAS SERVED BY AFFIXTURE ON 03.04.2007 AT THE SAME ADDRESS, BUT THE ASSESSEE HAS NOT FILED RETURN OF INCOME IN RESPONSE TO NOTICE U/S. 148 OF THE IT ACT. NOTICE U/S. 142(1) DATED 07 .11.2008 WAS ISSUED TO THE ASSESSEE CALLING FOR THE DETAILS AND INFORMATION OF THE GIFT AND THE CASE WAS FIXED FOR 20.11.2008. ON 20.11.2008, THE ASSESSEE RAISED OBJECTIONS REGARDING PROCEEDINGS U/S. 148 MAINLY FOR ISSUANCE AND SERVIC E OF NOTICE WITHIN THE STATUTORY PERIOD. THE ASSESSEE REQUESTED FOR SUPPLY OF COPY O F REASONS AND INSPECTION OF RECORD. THE AO INTIMATED THE ASSESSEE THAT ONLY REQ UIREMENT U/S. 149 IS ISSUANCE OF NOTICE U/S. 148 WITHIN SIX YEARS FROM THE END OF TH E RELEVANT ASSESSMENT YEAR, WHICH IN THIS CASE WAS 31.03.2007 AND NOTICE U/S. 1 48 HAS BEEN ISSUED ON 30.03.2007. THE PHOTOCOPY OF NOTICE U/S. 148 WAS AL SO GIVEN TO THE ASSESSEE ALONG WITH LETTER BY THE AO. THE AO REJECTED THE OBJECTIO NS OF THE ASSESSEE REGARDING ISSUING AND SERVICE OF NOTICE U/S. 148 OF THE IT AC T AND THE AO HELD THAT THE PROCEEDINGS U/S. 148 HAVE BEEN VALIDLY INITIATED. T HE INFORMATION U/S. 133(6) AND SUMMONS U/S. 131 WERE ISSUED TO THE DONOR SHRI SANJ AY MOHAN AGARWAL, BUT THESE NOTICES RECEIVED UN-SERVED WITH THE REMARKS OF THE POSTAL AUTHORITIES LEFT. THE ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 7 AO CONSIDERING THE MATERIAL ON RECORD FOUND THAT DO NOR NOT ONLY HAD GIVEN GIFT TO THE ASSESSEES BUT ALSO TO OTHER PERSONS THROUGH HIS VARIOUS BANK ACCOUNTS AND THE ASSESSEE HAS FAILED TO DISCHARGE THE ONUS UPON HIM TO PROVE THE IDENTITY OF THE DONOR, HIS CAPACITY TO GIVE GIFT AND GENUINENESS OF THE GIFT IN THE MATTER. THE AO, THEREFORE, HELD THE GIFT OF RS.10,00,000/- TO BE UN EXPLAINED U/S. 68 OF THE IT ACT AND COMPUTED THE INCOME OF THE ASSESSEE ACCORDINGLY AT RS.13,68,969/-. THE ASSESSEE CHALLENGED THE VALIDITY OF RE-ASSESSMENT P ROCEEDINGS BEFORE THE LD. CIT(A) AS WELL AS THE ADDITION ON MERITS. THE LD. C IT(A) CONSIDERING THE MATERIAL ON RECORD CONFIRMED THE ORDER OF THE AO IN INITIATI NG THE PROCEEDINGS U/S. 147/148 OF THE IT ACT AND DISMISSED THIS GROUND OF APPEAL O F THE ASSESSEE. HOWEVER, ON MERITS, THE LD. CIT(A) ALLOWED THE APPEAL OF THE AS SESSEE HOLDING THAT THE ASSESSEE HAS ESTABLISHED THE IDENTITY OF THE DONOR, HIS CRED ITWORTHINESS AND GENUINENESS OF THE TRANSACTION OF GIFT BY PRODUCING NECESSARY EVID ENCES. THEREFORE, THE ADDITIONS ON MERITS WERE DELETED IN ALL THE CASES OF VARIOUS ASSESSEES. THUS, ALL THE APPEALS OF THE ASSESSEES WERE PARTLY ALLOWED THROUGH COMMON IM PUGNED ORDER DATED 22.06.2012. THE REVENUE AS WELL AS THE ASSESSEE ARE IN APPEAL AND CROSS OBJECTIONS ABOVE, FEELING AGGRIEVED AGAINST THE FINDINGS OF TH E LD. CIT(A) IN HOLDING SO. 5. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES, PERUSED THE FINDINGS OF AUTHORITIES BELOW AND CONSIDERED THE MA TERIAL AVAILABLE ON RECORD. ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 8 6. BEFORE CONSIDERING THE ISSUE ON MERIT, IT WOULD BE APPROPRIATE TO TAKE UP THE LEGAL ISSUE FIRST REGARDING VALIDITY OF INITIATION OF PROCEEDINGS U/S. 148 OF THE IT ACT, WHICH IS RAISED IN THE CROSS-OBJECTION OF THE ASSESSEE. 6.1. AFTER HEARING THE ARGUMENTS OF LD. REPRESENTAT IVES OF BOTH THE PARTIES, WE FIND THAT FOUR POINTS HAVE ARISEN FOR CONSIDERATION AND ADJUDICATION WITH REGARD TO VALIDITY OF THE REASSESSMENT PROCEEDINGS U/S. 147/1 48 OF THE IT ACT, WHICH WE DEAL WITH THEM AS UNDER : (1). WHETHER THE AO HAS VALIDLY INITIATED THE RE-A SSESSMENT PROCEEDINGS U/S. 147/148 OF THE IT ACT. (2). WHETHER THE CASE OF THE ASSESSEE WOULD FALL I N PROVISO TO SECTION 147 OF THE IT ACT. (3). WHETHER NOTICE U/S. 148 DATED 30.03.2007 WAS ISSUED WITHIN SIX YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR AS PER SECTION 149 OF THE IT ACT. (4). WHETHER THERE WAS ANY VALID SERVICE OF NOTICE U/S. 148 OF THE IT ACT UPON THE ASSESSEE. 7. IT WOULD BE RELEVANT TO REPRODUCE THE RELEVANT P ROVISIONS OF LAW DEALING WITH THE ABOVE LEGAL ISSUE OF VALIDITY OF INITIATION OF RE-ASSESSMENT PROCEEDINGS U/S. 147/148 OF THE IT ACT. 7.1. SECTION 147 OF THE IT ACT PROVIDES AS UNDER : ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 9 147. IF THE ASSESSING OFFICER, 1523[HAS REASON TO B ELIEVE] THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR, HE MAY, SUBJECT TO THE PROVISIONS OF SECTIONS 148 TO 153, ASSESS OR REASSESS SUCH INCOME AND ALSO ANY OTHER INCOME C HARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDINGS UNDER THIS SECTION, OR RECOMPUTE THE LOSS OR THE DEPRECIATION ALLOWANCE OR ANY OTHER ALLOWANCE, AS THE CASE MAY BE, FOR THE ASSESSMENT Y EAR CONCERNED (HEREAFTER IN THIS SECTION AND IN SECTIONS 148 TO 1 53 REFERRED TO AS THE RELEVANT ASSESSMENT YEAR: PROVIDED THAT WHERE AN ASSESSMENT UNDER SUB-SECTION (3) OF SECTION 143 OR THIS SECTION HAS BEEN MADE FOR THE RELEVANT ASSESSMENT YEAR, NO ACTION SHALL BE TAKEN UNDER THIS SECTION AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLES S ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH A SSESSMENT YEAR BY REASON OF THE FAILURE ON THE PART OF THE ASSESSEE T O MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SUB-SECTION (1) OF SECTION 142 OR SECTION 148 OR TO DISCLOSE FU LLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THA T ASSESSMENT YEAR: PROVIDED FURTHER THAT THE ASSESSING OFFICER MAY ASSESS OR REASSESS SUCH INCOME, OTHER THAN THE INCOME INVOLVING MATTER S WHICH ARE THE SUBJECT MATTER OF ANY APPEAL, REFERENCE OR REVISION , WHICH IS CHARGEABLE TO TAX AND HAS ESCAPED ASSESSMENT. EXPLANATION 1 : PRODUCTION BEFORE THE ASSESSING OFF ICER OF ACCOUNT BOOKS OR OTHER EVIDENCE FROM WHICH MATERIAL EVIDENC E COULD WITH DUE DILIGENCE HAVE BEEN DISCOVERED BY THE ASSESSING OFF ICER WILL NOT NECESSARILY AMOUNT TO DISCLOSURE WITHIN THE MEANING OF THE FOREGOING PROVISO. EXPLANATION 2 : FOR THE PURPOSES OF THIS SECTION, T HE FOLLOWING SHALL ALSO BE DEEMED TO BE CASES WHERE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, NAMELY: (A) WHERE NO RETURN OF INCOME HAS BEEN FURNISHED BY THE ASSESSEE ALTHOUGH HIS TOTAL INCOME OR THE TOTAL INCOME OF ANY OTHER PERSON IN RESPECT OF WHICH HE I S ASSESSABLE UNDER THIS ACT DURING THE PREVIOUS YEAR ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 10 EXCEEDED THE MAXIMUM AMOUNT WHICH IS NOT CHARGEABLE TO INCOME TAX. (B) WHERE A RETURN OF INCOME HAS BEEN FURNISHED BY THE ASSESSEE BUT NO ASSESSMENT HAS BEEN MADE AND IT IS NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS UNDERSTATED THE INCOME OR HAS CLAIMED EXCESSIVE LOSS, DEDUCTION, ALLOWANCE OR RELIEF IN THE RETURN. (C) WHERE AN ASSESSMENT HAS BEEN MADE, BUT- (I) INCOME CHARGEABLE TO TAX HAS BEEN UNDER ASSESSED; OR (II) SUCH INCOME HAS BEEN ASSESSED AT TOO LOW A RATE; OR (III) SUCH INCOME HAS BEEN MADE THE SUBJECT OF EXCESSIVE RELIEF UNDER THIS ACT; OR (IV) EXCESSIVE LOSS OR DEPRECIATION ALLOWANCE OR ANY OTHER ALLOWANCE UNDER THIS ACT HAS BEEN COMPUTED. EXPLANATION 3 : FOR THE PURPOSE OF ASSESSMENT OR RE ASSESSMENT UNDER THIS SECTION, THE ASSESSING OFFICER MAY ASSESS OR R EASSESS THE INCOME IN RESPECT OF ANY ISSUE, WHICH HAS ESCAPED ASSESSME NT, AND SUCH ISSUE COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF T HE PROCEEDINGS UNDER THIS SECTION, NOTWITHSTANDING THAT THE REASON S FOR SUCH ISSUE HAVE NOT BEEN INCLUDED IN THE REASONS RECORDED UNDE R SUB-SECTION (2) OF SECTION 148. EXPLANATION 4 . FOR THE REMOVAL OF DOUBTS, IT IS HEREBY CLARIFIED THAT THE PROVISIONS OF THIS SECTION, AS AMENDED BY THE F INANCE ACT, 2012, SHALL ALSO BE APPLICABLE FOR ANY ASSESSMENT YEAR BE GINNING ON OR BEFORE THE 1ST DAY OF APRIL, 2012. 7.2 SECTION 148 OF THE IT ACT PROVIDES AS UNDER : 148 (1). BEFORE MAKING THE ASSESSMENT, REASSESSMENT O R RECOMPUTATION UNDER SECTION 147, THE ASSESSING OFFI CER SHALL SERVE ON THE ASSESSEE A NOTICE REQUIRING HIM TO FURNISH WITH IN SUCH PERIOD, AS ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 11 MAY BE SPECIFIED IN THE NOTICE, A RETURN OF HIS INC OME OR THE INCOME OF ANY OTHER PERSON IN RESPECT OF WHICH HE IS ASSESSAB LE UNDER THIS ACT DURING THE PREVIOUS YEAR CORRESPONDING TO THE RELEVANT ASSESSMENT YEAR, IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED; AND THE PROVISIONS OF THIS ACT SHALL , SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN R EQUIRED TO BE FURNISHED UNDER SECTION 139: PROVIDED THAT IN A CASE (A) WHERE A RETURN HAS BEEN FURNISHED DURING THE PE RIOD COMMENCING ON THE 1ST DAY OF OCTOBER, 1991 AND ENDI NG ON THE 30TH DAY OF SEPTEMBER, 2005 IN RESPONSE TO A NOTICE SERV ED UNDER THIS SECTION, AND (B) SUBSEQUENTLY A NOTICE HAS BEEN SERVED UNDER SUB -SECTION (2) OF SECTION 143 AFTER THE EXPIRY OF TWELVE MONTHS SP ECIFIED IN THE PROVISO TO SUB-SECTION (2) OF SECTION 143, AS IT ST OOD IMMEDIATELY BEFORE THE AMENDMENT OF SAID SUB-SECTION BY THE FIN ANCE ACT, 2002 (20 OF 2002) BUT BEFORE THE EXPIRY OF THE TIME LIMI T FOR MAKING THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION AS SPECIF IED IN SUB-SECTION (2) OF SECTION 153, EVERY SUCH NOTICE REFERRED TO I N THIS CLAUSE SHALL BE DEEMED TO BE A VALID NOTICE: PROVIDED FURTHER THAT IN A CASE (A) WHERE A RETURN HAS BEEN FURNISHED DURING THE PE RIOD COMMENCING ON THE 1ST DAY OF OCTOBER, 1991 AND ENDI NG ON THE 30TH DAY OF SEPTEMBER, 2005, IN RESPONSE TO A NOTICE SER VED UNDER THIS SECTION, AND (B) SUBSEQUENTLY A NOTICE HAS BEEN SERVED UNDER CLA USE (II) OF SUB-SECTION (2) OF SECTION 143 AFTER THE EXPIRY OF TWELVE MONTHS SPECIFIED IN THE PROVISO TO CLAUSE (II) OF SUB-SECT ION (2) OF SECTION 143, BUT BEFORE THE EXPIRY OF THE TIME LIMIT FOR MAKING THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION AS SPECIFIED IN SUB-S ECTION (2) OF SECTION 153, EVERY SUCH NOTICE REFERRED TO IN THIS CLAUSE SHALL BE DEEMED TO BE A VALID NOTICE. EXPLANATION : FOR THE REMOVAL OF DOUBTS, IT IS HER EBY DECLARED THAT NOTHING CONTAINED IN THE FIRST PROVISO OR THE SECON D PROVISO SHALL ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 12 APPLY TO ANY RETURN WHICH HAS BEEN FURNISHED ON OR AFTER THE 1ST DAY OF OCTOBER, 2005 IN RESPONSE TO A NOTICE SERVED UNDER THIS SECTION. (2) THE ASSESSING OFFICER SHALL, BEFORE ISSUING AN Y NOTICE UNDER THIS SECTION, RECORD HIS REASONS FOR DOING SO. 7.3 SECTION 149 OF THE IT ACT PROVIDES AS UNDER : 149. (1) NO NOTICE UNDER SECTION 148 SHALL BE ISSUED FOR THE RELEVANT ASSESSMENT YEAR, (A) IF FOUR YEARS HAVE ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLESS THE CASE FALLS UNDER CLAUSE (B) OR CLA USE (C); (B) IF FOUR YEARS, BUT NOT MORE THAN SIX YEARS, HA VE ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS THE INCOME C HARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AMOUNTS TO OR IS LIKEL Y TO AMOUNT TO ONE LAKH RUPEES OR MORE FOR THAT YEAR;] (C) IF FOUR YEARS, BUT NOT MORE THAN SIXTEEN YEARS, HAVE ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS THE INCO ME IN RELATION TO ANY ASSET (INCLUDING FINANCIAL INTEREST IN ANY ENTI TY) LOCATED OUTSIDE INDIA, CHARGEABLE TO TAX, HAS ESCAPED ASSESSMENT.] EXPLANATION.IN DETERMINING INCOME CHARGEABLE TO TA X WHICH HAS ESCAPED ASSESSMENT FOR THE PURPOSES OF THIS SUB-SEC TION, THE PROVISIONS OF EXPLANATION 2 OF SECTION 147 SHALL AP PLY AS THEY APPLY FOR THE PURPOSES OF THAT SECTION. (2) THE PROVISIONS OF SUB-SECTION (1) AS TO THE ISS UE OF NOTICE SHALL BE SUBJECT TO THE PROVISIONS OF SECTION 151. (3) IF THE PERSON ON WHOM A NOTICE UNDER SECTION 14 8 IS TO BE SERVED IS A PERSON TREATED AS THE AGENT OF A NON-RESIDENT UND ER SECTION 163 AND THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION TO BE MADE IN PURSUANCE OF THE NOTICE IS TO BE MADE ON HIM AS THE AGENT OF SUCH NON- RESIDENT, THE NOTICE SHALL NOT BE ISSUED AFTER THE EXPIRY OF A PERIOD OF SIX YEARS FROM THE END OF THE RELEVANT ASSESSMEN T YEAR. EXPLANATION.FOR THE REMOVAL OF DOUBTS, IT IS HEREB Y CLARIFIED THAT THE PROVISIONS OF SUB-SECTIONS (1) AND (3), AS AMEN DED BY THE FINANCE ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 13 ACT, 2012, SHALL ALSO BE APPLICABLE FOR ANY ASSESSM ENT YEAR BEGINNING ON OR BEFORE THE 1ST DAY OF APRIL, 2012. POINT NO. 1 : WHETHER THE AO HAS VALIDLY INITIATED THE RE-ASSES SMENT PROCEEDINGS U/S. 147/148 OF THE IT ACT. 8. ACCORDING TO THE AO, THE ASSESSEE FILED ORIGINAL RETURN OF INCOME ON 28.03.2001 AT INCOME OF RS.3,68,969/-. COPY OF THE ACKNOWLEDGEMENT OF THE RETURN OF INCOME ALONG WITH ANNEXURES ARE FILED IN THE PAP ER BOOK AT CPB-119 TO 122, IN WHICH THE ASSESSEE HAS DECLARED ALL THE PARTICULARS AND INFORMATION OF RECEIPT OF GIFT OF RS.15,00,000/-. THE ASSESSMENT WAS COMPLETED AT INCOME OF RS.8,68,969/- U/S. 143(3)/147 VIDE ORDER DATED 30.03.2006 AFTER MAKING ADDITION OF RS.5,00,000/- ON ACCOUNT OF UNEXPLAINED GIFT RECEIVED FROM SH. SANJA Y MOHAN AGARWAL. THE SAID ADDITION WAS DELETED BY THE LD. CIT(A)-II, AGRA VID E ORDER DATED 24.04.2008. IT IS NOTED IN THIS ASSESSMENT ORDER THAT INFORMATION WAS RECEIVED FROM ADIT (INV.) THAT SHRI SANJAY MOHAN AGARWAL OF NEW DELHI IS INVOLVED IN GIVING BOGUS GIFTS BY CHEQUES/DDS IN LIEU OF CASH RECEIVED FROM THE INTEN DED BENEFICIARIES. IN THE SUBSEQUENT IMPUGNED REASSESSMENT ORDER, UNDER APPEA L, DATED 10.12.2008 THE SAME FACT FINDS MENTION THAT INFORMATION WAS RECEIVED FR OM THE INVESTIGATION WING, GHAZIABAD THAT THE ASSESSEE HAS TAKEN GIFT OF RS.10 ,00,000/- FROM SIMILAR DONOR SHRI SANJAY MOHAN AGARWAL, NEW DELHI IN RESPECT OF THE SAME ASSESSMENT YEAR UNDER APPEAL. THEREFORE, ALL THE FACTS OF DECLARATI ON OF GIFT FROM THE SAME DONOR WERE AVAILABLE TO THE REVENUE DEPARTMENT PRIOR TO I NFORMATION RECEIVED FROM THE ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 14 INVESTIGATION WING, GHAZIABAD. APART FROM THE ABOVE , SINCE, THE ASSESSEE HAS ALREADY DECLARED RECEIPT OF GIFT OF RS.15,00,000/- IN THE ORIGINAL RETURN OF INCOME FROM THE SAME DONOR SHRI SANJAY MOHAN AGARWAL, THER EFORE, ALL THE DETAILS AND RELEVANT FACTS OF RECEIPT OF GIFT AMOUNT OF RS.15,0 0,000/- WERE DISCLOSED TO THE REVENUE DEPARTMENT EVEN PRIOR TO THE INITIATION OF THE RE-ASSESSMENT PROCEEDINGS. THUS, THE ASSESSEE DISCLOSED ALL THE PRIMARY FACTS OF RECEIPTS OF GIFT FROM THE DONOR. WHEN FIRST RE-ASSESSMENT ORDER FOR THE SAME ASSESSM ENT YEAR UNDER APPEAL DATED 30.03.2006 WAS PASSED, THE INFORMATION OF RECEIPT O F GIFT FROM THE SAME DONOR SHRI SANJAY MOHAN AGARWAL WAS IN ISSUE AND AT THAT TIME THE INFORMATION WAS RECEIVED OF THE GIFT IN QUESTION FROM ADIT (INV.), AGRA THRO UGH JCIT, RANGE-5, FIROZABAD. IT IS, THUS, UNBELIEVABLE THAT THE AO AT THE TIME O F PASSING OF THE FIRST RE-ASSESSMENT ORDER DATED 30.03.2006 WAS NOT AWARE OF THE ENTIRE GIFT AMOUNT OF RS.15,00,000/- RECEIVED BY THE ASSESSEE FROM THE DONOR SHRI SANJAY MOHAN AGARWAL. THE AO THUS EXAMINED ALL THE MATERIAL BEFORE HIM AT THE ORIGINA L RE-ASSESSMENT PROCEEDINGS IN RESPECT OF THE GIFT RECEIVED FROM SHRI SANJAY MOHAN AGARWAL AND THE ISSUE WAS ALSO CONSIDERED IN DETAIL BY THE LD. CIT(A) WHILE D ELETING THE IMPUGNED ADDITION OF RS.5,00,000/- ON ACCOUNT OF GIFT RECEIVED FROM THE SAME DONOR VIDE APPELLATE ORDER DATED 24.04.2008. THE AO ON THE BASIS OF INFORMATIO N RECEIVED FROM INVESTIGATION WING, GHAZIABAD INTENDED TO AGAIN RE-ASSESS THE INC OME OF ASSESSEE ON ACCOUNT OF PART OF THE GIFT OF RS.10,00,000/- RECEIVED FROM S AME DONOR IN SAME ASSESSMENT YEAR, AND THE LETTER OF ADIT (INV.), GHAZIABAD WAS RECEIVED ON 21.03.2007. THE ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 15 AO ASKED THE BRANCH MANAGER, VIJAYA BANK TO GIVE SO ME DETAILS AND THEREAFTER ON 30.03.2007 ALLEGEDLY ISSUED NOTICE U/S. 148 OF THE IT ACT AGAINST THE ASSESSEE. THE AO RECORDED THE FOLLOWING REASONS FOR RE-OPENING OF THE ASSESSMENT WHICH ARE REPRODUCED AS UNDER : REASONS THE ADDL. DIRECTOR OF INCOME TAX (INV.),GHAZIABAD V IDE LETTER F. NO. ADDL. DIT (INV.)/GZB/AES/SM/BOGUS GIFTS/1/20 06-07/796 DATED 16.03.2007 ENDORSED VIDE F.NO. ADDL. CIT/R- 5/FIROZABAD /INFORMATION/2006-07 DATED 21.03.2007 OF THE ADDL. COMMISSIONER OF INCOME-TAX, RANGE-5, FIROZABAD HAS INFORMED THAT ONE SH.SANJAY MOHAN AGARWAL, 4674, SHORA KOTHI, PAH AR GANJ, NEW DELHI WAS ENGAGED IN PROVIDING ACCOMMODATION ENTRIE S BY WAY OF GIFT TO THE NEEDY PERSONS. A LIST OF THE PERSONS WHO HAV E TAKEN ACCOMMODATION ENTRIES FROM HIM WAS ALSO ENCLOSED WI TH THE SAID LETTER OF ADDL. DIT(INV). CONSEQUENTLY, INQUIRIES W ERE CONDUCTED FROM VIJAYA BANK, FIROZABAD AND IT WAS GATHERED THAT THE ASSESSEE HAS TAKEN ACCOMMODATION ENTRY OF RS.10,00,000/- BY WAY OF GIFT VIDE D.D. NO.005105 DATED 04.11.99.THE SAID D.D. HAS BEEN CRE DITED TO THE SAVING BANK ACCOUNT OF THE ASSESSEE MAINTAINED WITH ORIENTAL BANK OF COMMERCE, FIROZABAD. THE ASSESSEE HAS THUS INTRODUC ED HIS OWN UNACCOUNTED INCOME IN THE GARB OF A GIFT JUST TO GE T AWAY FROM PAYMENT OF TAX ON THAT UNACCOUNTED INCOME, WHICH WA S CLEARLY LIABLE TO TAX AS PER PROVISIONS OF I.T. ACT. NO AMOUNT OF DD CREDITED TO THE BANK ACCOUNT OF THE ASSESSEE HAS BEEN ADDED TO THE INCOME OF THE ASSESSEE AS PER ORDER U/S. 143(3) DATED 27.03.2006. I HAVE, THEREFORE, IN VIEW OF THE INFORMATION AVAILABLE WITH THIS OFFI CE, REASON TO BELIEVE THAT INCOME TO THE EXTENT OF RS.10,00,000/- HAS ESC APED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE INCOME-TAX ACT. ACIT, CIRCLE-5, FIROZABAD. 8.1 THE ORDER SHEET RECORDED BY THE AO FROM 21.03.2 007 TO 09.04.2007 IS FILED AT PAGE 53 OF THE PAPER BOOK AND IS REPRODUCED AS U NDER : ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 16 21.3.2007. THE LETTER F.NO. CIT-II/AGRA/ACIT (HQ.) MISC./2006-07/6660 DATED 19.03.2007 REGARDING ACCOMMODATION ENTRIES TO GETHER WITH COPY OF LETTER DATED 16.03.2007 OF ADDL. DIT ( INV.), GHAZIABAD RECEIVED. 22.03.2007. THE BRANCH MANAGER, VIJAYA BANK, FIROZA BAD REQUIRED TO FURNISH DETAILS OF D.D. THROUGH WHICH ACCOMMODATION ENTRY WAS TAKEN. 23.03.2007. LETTER REF. NO.- NIL DATED 23.03.2007 E NCLOSING COPY OF D.D. NO.005375 DATED 18.11.1999 RECEIVED FROM VIJAYA BAN K AND PLACED ON FILE. REPORT REGARDING CORRECT NAME OF PERSONS WHO HAVE TAKEN ACCOMMODATION ENTRIES SUBMITTED TO THE ADDL. CIT, R ANGE-5, FIROZABAD. ON VERIFICATION FROM DEMAND AND COLLECTION REGISTE R ASSESSMENT IN THIS CASE WAS COMPLETED U/S. 143(3)/1 47 ON 27.03.2006. PROPOSAL U/S. 151 SEEKING APPROVAL FOR ISSUE OF NOT ICE U/S. 148 SENT TO CIT-II AGRA VIDE LETTER F.NO. ACIT/CIR.- 5/FZD/151/2006-07/DATED 23.03.2007. 30.03.2007. APPROVAL U/S. 151 OF CIT-II FOR ISSUE O F NOTICE U/S. 148 VIDE LETTER F.NO. PROPOSAL U/S.148/ADDL. CIT/R-5/FZD/200 6-07/827 DATED 29.03.2007. NOTICE U/S. 148 ISSUED. THE INSPECTOR OF INCOME-TAX REPORTED THAT ASSESSEE DOES NOT RESIDE AT THE GIVEN ADDRESS I.E., 33, CIRCULAR ROAD , FIROZABAD. HE IS ACCORDINGLY DIRECTED TO EFFECT SERVICE BY AFF IXTURE. 03.04.2007. THE INSPECTOR OF INCOME-TAX RETURNED NO TICE WITH A REPORT THEREON AFTER HAVING AFFIXED COPY OF NOTICE U/S. 14 8. ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 17 09.04.2007. ENVELOP CONTAINING NOTICE U/S. 148 RECE IVED BACK AND PLACED ON RECORD. 8.2 THE LD. CIT(A) AT PAGE 40 OF THE APPELLATE ORDE R AFTER GOING THROUGH THE ASSESSMENT RECORD OF ALL THE ABOVE ASSESSEES NOTED THAT AS PER RECORD, LETTER DATED 19.03.2007 WAS RECEIVED BY THE AO ON 21.03.2007 FOR WARDING REPORT OF ADDL. DIT (INV.), GHAZIABAD DATED 16.03.2007 PROVIDING TH E DETAILS OF ACCOMMODATION ENTRIES OF BOGUS GIFTS RECEIVED BY ALL EIGHT ASSESS EES. THOUGH NAMES OF SOME OF THESE PERSONS WERE NOT MENTIONED CORRECTLY IN THE S AID REPORT, THESE NAMES WERE GOT VERIFIED BY THE AO FROM THE CONCERNED BANK, IN WHICH THE BANK ACCOUNT OF THESE PERSONS WERE MAINTAINED AND IT HAS BEEN CONFI RMED BY THE BENCH THAT ALL THE EIGHT ASSESSEES HAVE RECEIVED GIFT AMOUNTS. FROM T HE FINDINGS OF THE LD. CIT(A), IT IS CLEAR THAT ADIT (INV.), GHAZIABAD HAS PROVIDED S OME VAGUE INFORMATION REGARDING ACCOMMODATION ENTRIES RECEIVED BY THE ASS ESSEES. THE ASSESSEE HAS FILED COPY OF THE REMAND REPORT DATED 30.04.2012 ISSUED B Y DCIT (INV.), GHAZIABAD (PB-141), IN WHICH WHILE FILING THE REMAND REPORT R EGARDING THE ASSESSEES, THE DCIT HAS MENTIONED THAT RECORD OF INVESTIGATION WIN G HAVE BEEN VERIFIED AND NO SUCH RECORDS REGARDING INVESTIGATION IN THE CASE OF S.M. AGARWAL HAVE BEEN FOUND. HE HAS REFERRED TO LETTER OF ADIT (INV.), GHAZIABAD DATED 16.03.2007 ADDRESSED TO CIT(A)-II, AGRA THAT DD/CHEQUES HAVE BEEN ISSUED TO THE BENEFICIARIES THROUGH VIJAYA BANK, ANASARI ROAD, NEW DELHI AND THAT THE A SSESSING OFFICER CAN CALL FOR THE RECORD FROM THE BANK. THE LD. CIT(A) WHILE FINA LIZING OF THE APPEALS OF THE ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 18 ASSESSEE RECORDED THE ORDER SHEET AND THE RELEVANT ORDER SHEET OF DT. 20.06.2012 IS FILED BY THE ASSESSEE AT PAGE 148 OF THE PAPER BOOK AND THE RELEVANT ENTRY CONTAINED IN THE ORDER SHEET DATED 20.06.2012 IS REPRODUCED A S UNDER : AS REGARD TO MERIT OF CASE, THE ASSESSEE HAS FILED PAN CARD AND VOTER IDENTITY CARD TO ESTABLISH THE IDENTITY O F THE DONOR, ASSESSMENT ORDER U/S. 143(3) ASSESSING AT CRORES OF RUPEES TO PROVE THE CREDITWORTHINESS AND GIFT DEED HAS BEEN FILED T O PROVE THE GENUINENESS OF THE GIFT. AO COULD NOT PRODUCE ANY E VIDENCE TO PROVE THESE DOCUMENTS FILED BY THE ASSESSEE AS FALSE. EVE N THE MATERIALS CLAIMED TO HAVE BEEN COLLECTED DURING THE INVESTIGA TION OF SANJAY MOHAN AGARWAL SHOWING THAT GIFT WAS GIVEN TO THE AS SESSEE OUT OF CASH DEPOSITED BY HIM IN THE ACCOUNT OF SHRI AGARWA L. IT WAS SHOWN THAT IN THE ACCOUNT FROM WHICH GIFT WAS ISSUED , TH ERE WAS NO CASH DEPOSIT. AO EXPRESSED HIS INABILITY TO PROVIDE ANY EVIDENCE TO SHOW THAT GIFT WAS GIVEN OUT OF CASH DEPOSIT MADE BY THE ASSESSEE BECAUSE SUCH DETAILS ARE NEITHER AVAILABLE WITH THE INVESTI GATION WING, GHAZIABAD WHEN ENQUIRY WAS CONDUCTED OR IN OF THE C IT-II, WHERE THE SAID MATERIAL WAS CLAIMED TO HAVE BEEN SENT. 8.3 THE AO AT THE ASSESSMENT STAGE ISSUED LETTER U/ S. 142(1) DATED 07.11.2008 (COPY FILED AT PAGE 44 OF THE PAPER BOOK) IN WHICH THE AO CALLED FOR INFORMATION OF THE GIFT BY THE DONOR FROM THE ASSESSEE. THESE FACT S, THEREFORE, WOULD CLEARLY SHOW THAT ALL INFORMATION AND DETAILS OF GIFT RECEIVED F ROM SHRI SANJAY MOHAN AGARWAL, DONOR WERE FURNISHED TO THE REVENUE DEPARTMENT NOT ONLY IN THE ORIGINAL RETURN OF INCOME, BUT IN THE FIRST RE-ASSESSMENT PROCEEDINGS U/S. 148 OF THE IT ACT WHICH CULMINATED INTO ASSESSMENT ORDER DATED 30.03.2006. THUS, INFORMATION OF GIFTS WERE VERIFIED AND EXAMINED BY THE AO AND PART ADDIT ION WAS MADE OF GIFT OF RS.5,00,000/- WHICH WAS ULTIMATELY DELETED BY THE L D. CIT(A). THE AO IN THE ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 19 REMAND REPORT DATED 30.04.2012 CONFIRMED THAT NO RE CORD RELATING TO INVESTIGATION IN THE CASE OF SANJAY MOHAN AGARWAL HAVE BEEN FOUND IN THE OFFICE OF INVESTIGATION WING, GHAZIABAD. THE LD. CIT(A) IN TH E ORDER SHEET DATED 20.06.2012 ON FILING THE EVIDENCE BY THE ASSESSEE FOUND THAT T HE ASSESSEE SUITABLY ESTABLISHED IDENTITY OF THE DONOR, HIS CREDITWORTHINESS AND GEN UINENESS OF THE GIFT IN THE MATTER. IT WAS ALSO FOUND THAT THE AO COULD NOT PRODUCE ANY EVIDENCE TO PROVE THAT THE EVIDENCE FILED BY THE ASSESSEE WERE FALSE. FROM THE MATERIAL CLAIMED TO BE COLLECTED FROM THE INVESTIGATION OF SHRI SANJAY MOH AN AGARWAL ALSO MADE IT CLEAR THAT NO CASH WAS DEPOSITED IN HIS ACCOUNT PRIOR TO GIVING OF THE GIFT. THE AO AT THE APPELLATE STAGE EXPRESSED HIS INABILITY TO PROVIDE ANY EVIDENCE TO SHOW THAT THE GIFT WAS GIVEN OUT OF CASH DEPOSIT MADE BY THE ASSESSEE BECAUSE NO SUCH DETAILS WEE AVAILABLE WITH THE INVESTIGATION WING, GHAZIABAD. T HESE FACTS WOULD, THEREFORE, CLEARLY SUPPORT THE CONTENTION OF THE LD. COUNSEL F OR THE ASSESSEE THAT THE REASONS FOR REOPENING OF ASSESSMENT WERE INCORRECT AND WITHOUT ANY BASIS OR MATERIAL. THE ASSESSEE HAS NOT INTRODUCED ANY UNACCOUNTED INCOME FOR ISSUE OF DD OF GIFT. WHATEVER INFORMATION WAS RECEIVED FROM THE INVESTIG ATION WING, GHAZIABAD, AS PER REASONS RECORDED BY THE AO, WAS ALSO INCORRECT BECAUSE THESE INFORMATION WERE ALREADY ON RECORD OF THE AO AS ON EARLIER OCCASION, RE-ASSESSMENT PROCEEDINGS WERE FINALIZED VIDE ASSESSMENT ORDER DATED 30.03.20 06. THERE WAS NOTHING NEW WITH THE AO TO SHOW THAT THE ASSESSEE HAS RECEIVED ANY BOGUS ACCOMMODATION ENTRIES OR HAS INTRODUCED ANY UNACCOUNTED MONEY. TH US, THE REASONS RECORDED FOR ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 20 REOPENING OF THE ASSESSMENT WERE VAGUE, INCORRECT A ND BASED ON NO MATERIAL OR EVIDENCE. WHATEVER IS RECORDED IN THE REASONS FOR R EOPENING OF ASSESSMENT WAS NOT SUPPORTED BY THE REMAND REPORT DATED 30.04.2012 FIL ED BY THE INVESTIGATION WING, GHAZIABAD. THE AO WAS THUS, HAVING NO INFORMATION O R MATERIAL TO PROVE THAT THE GIFT RECEIVED BY THE ASSESSEE WERE MERE ACCOMMODATI ON ENTRIES BECAUSE AT THE APPELLATE STAGE, THE AO WAS NOT ABLE TO CONTRADICT THE EVIDENCES FILED BY THE ASSESSEE FOR RECEIPT OF GENUINE GIFT IN THE MATTER AND HAS EXPRESSED HIS INABILITY TO PROVIDE ANY EVIDENCE TO CONTRADICT THE CLAIM OF THE ASSESSEE. HONBLE DELHI HIGH COURT IN THE CASE OF SIGNATURE HOTELS P. LTD. VS. I TO, 338 ITR 51 HELD HELD, ALLOWING THE PETITION, THAT THE REASSESSMENT PROCEE DINGS WERE INITIATED ON THE BASIS OF INFORMATION RECEIVED FROM THE DIRECTOR OF INCOME-TAX (INVESTIGATION) THAT THE PETITIONER H AD INTRODUCED MONEY AMOUNTING TO RS.5 LAKHS DURING FINANCIAL YEAR 2002- 03 AS STATED IN THE ANNEXURE. ACCORDING TO THE INFORMATION, THE AMOUNT RECEIVED FROM A COMPANY, S, WAS NOTHING BUT AN ACCOMMODATION ENTRY AND THE ASSESSEE WAS THE BENEFICIARY. THE REASONS DID NOT S ATISFY THE REQUIREMENTS OF SECTION 147 OF THE IT ACT. THERE WA S NO REFERENCE TO ANY DOCUMENT OR STATEMENT, EXCEPT THE ANNEXURE. THE ANN EXURE COULD NOT BE REGARDED AS A MATERIAL OR EVIDENCE THAT PRIM A FACIE SHOWED OR ESTABLISHES NEXUS OR LINK WHICH DISCLOSED ESCAPEMEN T OF INCOME. THE ANNEXURE WAS NOT A POINTER AND DID NOT INDICATE ESC APEMENT OF INCOME. FURTHER, THE ASSESSING OFFICER DID NOT APPL Y HIS OWN MIND TO THE INFORMATION AND EXAMINE THE BASIS AND MATERIAL OF THE INFORMATION. THERE WAS NO DISPUTE THAT THE COMPANY, S, HAD A PAID UP CAPITAL OF RS.90 LAKHS AND WAS INCORPORATED ON JANU ARY 4, 1989, AND WAS ALSO ALLOTTED A PERMANENT ACCOUNT NUMBER IN SEP TEMBER, 2001. THUS, IT COULD NOT BE HELD TO BE A FICTITIOUS PERSO N. THE REASSESSMENT PROCEEDINGS WEE NOT VALID AND WERE LIABLE TO BE QUA SHED. ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 21 8.4 CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF ABOVE DECISION, IT IS CLEAR THAT THERE WAS NO SPECIFIC OR RELIABLE INFORMATION RECEI VED FROM INVESTIGATION WING, GHAZIABAD ABOUT ESCAPEMENT OF INCOME AND NO RECORD OF THE DONOR WAS AVAILABLE WITH THE INVESTIGATION WING TO PROVE THAT HE WAS PR OVIDING ACCOMMODATION ENTRIES. EVEN ACCORDING TO THE LD. CIT(A), THE NAMES OF SOME OF THE ASSESSEES WERE NOT CORRECTLY MENTIONED IN THE REPORT OF INVESTIGATION WING, GHAZIABAD. THE AO MERELY CALLED FOR THE NAMES OF THE ASSESSEES FROM V IJAYA BANK. THEREFORE, THE INFORMATION RECEIVED FROM THE INVESTIGATION WING, G HAZIABAD WAS NOTHING. THE REASONS DID NOT SATISFY THE REQUIREMENT OF SECTION 147 OF THE IT ACT. THERE WAS NO REFERENCE TO ANY DOCUMENT OR MATERIAL WITH THE REPO RT OF INVESTIGATION WING, GHAZIABAD. THUS, THE SAME COULD NOT BE REGARDED AS A MATERIAL OR EVIDENCE THAT PRIMA FACIE SHOWED NEXUS OR LINK WHICH DISCLOSES TH E ESCAPEMENT OF INCOME. THE LETTER OF INVESTIGATION WING, GHAZIABAD DID NOT POI NT OUT THE FACT THAT THERE WAS ANY ESCAPEMENT OF INCOME IN THE CASE OF ASSESSEE. THERE FORE, IT IS CLEAR THAT THE AO DID NOT APPLY HIS OWN MIND TO THE VAGUE INFORMATION AND DID NOT EXAMINE THE BASIS OR MATERIAL, IF ANY, TO SUPPORT SUCH INFORMATION. THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF SIGNATURE HOTELS PVT. LTD. (SU PRA), THUS, SQUARELY APPLY TO THE FACTS AND CIRCUMSTANCES OF THE CASE. THE LD. DR, HO WEVER, RELIED UPON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF RAJAT EX PORT IMPORT INDIA PVT. LTD. VS. ITO, 18 TAXMAN.COM 311, IN WHICH THE ASSESSEE WAS N OT IN A POSITION TO DENY THAT THE MATERIAL RELIED UPON BY THE AO AT THE TIME OF R ECORDING THE REASONS FOR ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 22 REOPENING OF ASSESSMENT DID NOT CONTAIN ENTRY LINKI NG S. LTD. WITH THE ASSESSEE, ISSUE OF NOTICE U/S. 148 ON PRIMA FACIE BELIEF THAT THE INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT WAS HELD TO BE VALID. THE DECISI ON RELIED UPON BY THE LD. DR IS CLEARLY DISTINGUISHABLE ON FACTS OF THE PRESENT CAS E AS NOTED ABOVE BECAUSE IN THE REMAND REPORT OF THE INVESTIGATION WING, THE INVEST IGATION WING, GHAZIABAD DID NOT FIND ANY RECORD OF INVESTIGATION CONDUCTED IN THE C ASE OF DONOR SHRI SANJAY MOHAN AGARWAL OF GIVING BOGUS ACCOMMODATION ENTRY AND THE ORDER SHEET OF THE LD. CIT(A) DATED 20.12.2012 (SUPRA) SUPPORTS THE CASE O F THE ASSESSEE THAT THERE WAS GENUINE GIFT IN THE MATTER. IN OTHER CASES WHERE 14 3(1) IS DONE ALL INFORMATION OF GIFT DISCLOSED IN ORIGINAL RETURN. THEREFORE, THERE WAS NO PRIMA FACIE BELIEF AVAILABLE TO THE AO TO SAY THAT THERE WAS ANY ESCAP EMENT OF INCOME. THERE IS NO REASON TO BELIEVE AS REQUIRED BY SECTION 147. CONSI DERING THE ABOVE DISCUSSION, WE ARE OF THE VIEW THAT THERE WAS NO JUSTIFICATION FOR THE AO TO HAVE INITIATED THE RE- ASSESSMENT PROCEEDINGS U/S. 147/148 OF THE IT ACT. THE RE-ASSESSMENT ORDER IS, THEREFORE, LIABLE TO BE QUASHED. THIS POINT IS, THE REFORE, DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST REVENUE. POINT NO. 2 : WHETHER THE CASE OF THE ASSESSEE WOULD FALL IN PR OVISO TO SECTION 147 OF THE IT ACT. 9. THE PROVISO TO SECTION 147 OF THE IT ACT PROVIDE S THAT WHERE THE ASSESSMENT U/S. 143(3) OR THIS SECTION (147) HAS BEEN MADE FOR THE RELEVANT ASSESSMENT YEAR, NO ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 23 ACTION SHALL BE TAKEN UNDER THIS SECTION AFTER EXPI RY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS ANY INCOME CHAR GEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT ORDER BY REASON OF T HE FAILURE ON THE PART OF THE ASSESSEE TO MAKE A RETURN U/S. 139 OR IN RESPONSE T O NOTICE ISSUED UNDER SECTION 142(1) OR SECTION 148 OR TO DISCLOSE FULLY AND TRUL Y ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THAT ASSESSMENT YEAR. IT IS ADMI TTED FACT THAT THE ASSESSEE FILED ORIGINAL RETURN OF INCOME ON 28.03.2001 DISCLOSING ALL THE PRIMARY FACT OF RECEIPT OF GIFT AMOUNT OF RS.15,00,000/- FROM THE DONOR, SHRI SANJAY MOHAN AGARWAL. THE SAME RETURN WAS SUBJECTED TO RE-ASSESSMENT PROCEEDI NGS U/S. 143(3)/147 VIDE ASSESSMENT ORDER DATED 30.06.2006. THE AO MADE ADDI TION OF RS.5,00,000/- IN RESPECT OF THE GIFT RECEIVED FROM SHRI SANJAY MOHAN AGARWAL IN NOVEMBER, 1999 ITSELF. SAID ADDITION WAS DELETED BY THE LD. CIT(A) VIDE ORDER DATED 24.04.2008. THUS, THERE WAS NO FAILURE ON THE PART OF ASSESSEE TO FILE RETURN U/S. 139 OR U/S. 148 OF THE ACT. THERE WAS NO NON-COMPLIANCE OF NOTICE U /S. 142(1) OF THE IT ACT. THE ASSESSEE DISCLOSED ALL PRIMARY FACTS AND THE AO EXA MINED THE INFORMATION RECEIVED FROM INVESTIGATION WING REGARDING THE GIFT RECEIVED BY THE ASSESSEE FROM THE DONOR SHRI SANJAY MOHAN AGARWAL AND IN THE SAME MONTH OF NOVEMBER, 1999, GIFT OF RS.10,00,000/- WAS ALSO RECEIVED FROM THE SAME DONO R WHICH IS UNDER CONSIDERATION OF THE PRESENT APPEAL. IT IS HIGHLY U NBELIEVABLE THAT THE AO WHILE CONSIDERING THE ISSUE OF GIFT RECEIVED FROM SANJAY MOHAN AGARWAL, DONOR WOULD NOT HAVE EXAMINED THE ISSUE OF RECEIPT OF GIFT IN D ETAIL BECAUSE THE ASSESSEE HAS ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 24 DISCLOSED RECEIPT OF RS.15,00,000/- AS GIFT FROM SH RI SANJAY MOHAN AGAWAL, DONOR IN THE ORIGINAL RETURN OF INCOME ITSELF. THUS, THE ASSESSEE DISCLOSED FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THE ASSESSMENT YEAR UNDER APPEAL. THE FOUR YEARS HAVE EXPIRED FROM THE END OF THE RELEVANT ASSESSMENT ORDER ON 30.03.2007 WHEN AGAIN REASSESSMENT PROCEEDINGS W EE INITIATED AGAINST THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE RELIED U PON THE ORDER OF ITAT, JABALPUR, THIRD MEMBER BENCH IN THE CASE OF ACIT VS. VINDHYA TELELINKS LTD., 107 TTJ (JAB.) (TM) 149, IN WHICH IT WAS HELD AO HAVING REOPENED THE ASSESSMENT BY FORMING THE B ELIEF THAT ASSESSEES INCOME HAS ESCAPED ASSESSMENT MERELY ON PERUSAL OF FACTS ALREADY ON RECORD AND NOWHERE STATED IN THE REASONS RECORDED BY HIM THAT THERE WAS ANY FAILURE ON THE PART OF THE ASSES SEE TO FURNISH ANY MATERIAL FACT WHICH WAS NECESSARY FOR THE ASSESSMEN T, REOPENING OF ASSESSMENT AFTER EXPIRY OF FOUR YEARS WAS NOT VALID . 9.1 HE HAS ALSO RELIED UPON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF HARYANA ACRYLIC MANUFACTURING CO. VS. CIT, 308 I TR 38 (DEL.), IN WHICH IT WAS HELD - THERE BEING NO WHISPER IN THE REASONS SUPPLIED TO ASSESSEE THAT INCOME ESCAPED ASSESSMENT BY REASON OF ASSESSE ES FAILURE TO MAKE A FULL AND TRUE DISCLOSURE OF ALL MATERIAL FAC TS NECESSARY FOR ASSESSMENT, NOTICE UNDER S. 148 ISSUED BEYOND FOUR YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR WAS BARRED BY LIMITATIO N UNDER PROVISO TO S. 147, HENCE, WITHOUT JURISDICTION. 9.2. HONBLE BOMBAY HIGH COURT IN THE CASE OF MULTI SCREEN MEDIA P. LTD. VS. UNION OF INDIA & ANOTHER (NO. 1), 324 ITR 48 HELD ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 25 HELD, ALLOWING THE PETITION, THAT THE NOTICE DID NOT STAT E THAT THEE HAD BEEN ANY FAILURE TO DISCLOSE MATERIAL FACT S AT THE TIME OF THE ORIGINAL ASSESSMENT. THE GROUND FURNISHED IN THE NO TICE FOR RE- ASSESSMENT WOULD INDICATE THAT ACCORDING TO THE ASS ISTANT COMMISSIONER OF INCOME-TAX, ALLOCATION OF EXPENSES AS BETWEEN THE PETITIONER AND THE FOREIGN PRINCIPAL OUGHT TO HAVE BEEN ORIGINALLY CONSIDERED BY THE ASSESSING OFFICER WHEN THE ORDER OF ASSESSMENT WAS PASSED UNDER SECTION 143(3). THAT HOWEVER WOULD NOT GIVE A VALID REASON TO REOPEN THE ASSESSMENT BEYOND A PERIOD OF FOUR YEARS. THE NOTICE WAS NOT VALID AND WAS LIABLE TO BE QUASHED. 9.3 HONBLE GUJRAT HIGH COURT IN THE CASE OF GUJRAT STATE CO-OP. AGRI. AND RURAL DEVELOP. BANK LTD. VS. DCIT, 337 ITR 447 HELD HELD, ALLOWING THE PETITION, THAT THE SOLE BASIS FOR REOP ENING THE ASSESSMENT WAS THE SUBSEQUENT DECISION OF THE H IGH COURT. THE BELIEF AS TO ESCAPEMENT OF INCOME CHARGEABLE TO TAX FROM ASSESSMENT WAS NOT ENTERTAINED BY THE ASSESSING OFFICER ON THE GROUND THAT THERE HAD BEEN FAILURE ON THE PART OF THE ASSESSEE TO DIS CLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR THE ASSESSMENT AND NO PROCEEDINGS COULD HAVE BEEN INITIATED UNDER SECTION 148 OF THE INCOME-TAX ACT, 1961, AFTER THE EXPIRY OF A PERIOD OF FOUR YEARS FR OM THE END OF THE RELEVANT ASSESSMENT YEAR. THUS, THE INITIATION OF R EASSESSMENT PROCEEDINGS WAS BARRED BY LIMITATION AND THE ASSUMP TION OF JURISDICTION BY THE ASSESSING OFFICER WAS INVALID. THE NOTICE UNDER SECTION 148, THEREFORE, COULD NOT BE SUSTAINED. 9.4 HONBLE MADRAS HIGH COURT IN THE CASE OF SRI SAKTHI TEXTILES LTD. VS. JCIT AND ANOTHER, 340 ITR 144 (MAD.) HELD THAT THE NOTICES IN RESPECT OF ASSESSMENT YEARS 199 1-92 AND 1992-93 WERE ISSUED AFTER FOUR YEARS. THERE WAS NO MENTION IN THE RECORDED REASONS THAT THE ESCAPEMENT OF CHARGEABLE INCOME FROM TAX WAS DUE TO OMISSION OR FAILURE ON THE PART OF THE A SSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR TH E ASSESSMENT. THE NOTICES IN RESPECT OF THE ASSESSMENT YEARS 1991-92 AND 1992-93 ISSUED ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 26 UNDER SECTION 148 READ WITH SECTION 147 OF THE ACT WERE WHOLLY WITHOUT JURISDICTION AND, THEREFORE, THEY WERE LIAB LE TO BE QUASHED. 9.5 CONSIDERING THE ABOVE DISCUSSION, IN THE LIGHT OF ABOVE DECISIONS, IT IS CLEAR THAT THE ASSESSEE HAS DISCLOSED FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THE ASSESSMENT YEAR UNDER APPEAL, UP ON WHICH REGULAR REASSESSMENT ORDER WAS PASSED PRIOR TO THE IMPUGNED RE-ASSESSMEN T, THEREFORE, INITIATION OF RE- ASSESSMENT PROCEEDINGS AGAIN AFTER EXPIRY OF FOUR Y EARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR IS INVALID, BAD IN LAW AND IS WHOLLY UNJUSTIFIED. IN THE REASONS U/S. 148 AND NOTICE U/S. 148 DT. 30.03.2007 , AO HAS NOWHERE RECORDED THAT THE ESCAPEMENT OF CHARGEABLE INCOME FROM TAX WAS DU E TO OMISSION OR FAILURE ON PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY AL L MATERIAL FACTS NECESSARY FOR ASSESSMENT. THE REASSESSMENT ORDER IS, THEREFORE, L IABLE TO BE QUASHED ON THIS GROUND AS WELL. POINT NO. 2 IS, THEREFORE, DECIDED IN FAVOR OF THE ASSESSEE AND AGAINST THE REVENUE. POINT NO. 3 : WHETHER NOTICE U/S. 148 DATED 30.03.2007 WAS ISSU ED WITHIN SIX YEARS FROM THE END OF THE RELEVANT ASSES SMENT YEAR AS PER SECTION 149 OF THE IT ACT. 10. ACCORDING TO THE AO, NOTICE DATED 30.03.2007 U/ S. 148 WAS ISSUED TO THE ASSESSEE AT 33 CIRCULAR ROAD, FIROZABAD. THE AO GAV E THIS NOTICE TO THE INCOME- TAX INSPECTOR FOR SERVICE AND INCOME-TAX INSPECTOR REPORTED ON THE SAME DAY ON ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 27 30.03.2007 THAT THE ASSESSEE DOES NOT RESIDE AT THE ABOVE GIVEN ADDRESS. ACCORDING TO THE AO, HE HAS, THEREFORE, DIRECTED THE INSPECTO R TO EFFECT SERVICE BY AFFIXTURE. THE INSPECTOR GAVE HIS REPORT THAT THE MAIN DOOR/GA TE OF 33 CIRCULAR ROAD, FIROZABAD IS MADE OF IRON CHANNEL, HENCE, THIS NOTI CE CANNOT BE PASTED AT THIS CHANNEL GATE/DOOR AND HENCE ON THE LEFT SIDE OF THE WALL OF ENTRANCE HALL, THE NOTICE WAS AFFIXED IN PRESENCE OF SHRI RAM KUMAR S/O SHRI DUSHYANT KUMAR R/O 35, NAI BASTI, FIROZABAD. THE SERVICE BY AFFIXTURE WAS MADE ON 03.04.2007. IT IS ADMITTED FACT THAT NO NOTICE BY REGISTERED POST WAS ISSUED O N 30.03.2007 TO THE ASSESSEE. THE NOTICE DATED 30.03.2007 WAS SENT THROUGH REGISTERED POST ONLY ON 03.04.2007. THE ENTIRE ORDER SHEET RECORDED BY THE AO FROM THE DAY OF RECEIPT OF THE INFORMATION FROM INVESTIGATION WING, GHAZIABAD AND ISSUE OF NOT ICE U/S. 148 U/S. 148 IS REPRODUCED ABOVE. IN THE ORDER SHEET DATED 30.03.2 007, IT IS NOT RECORDED THAT NOTICE U/S. 148 DATED 30.03.2007 WAS GIVEN TO INCOM E-TAX INSPECTOR FOR THE PURPOSE OF SERVICE. NO NOTICE U/S. 148 DATED 30.03.2007 WAS ISSUED TO THE ASSESSEE BY POST DESPITE IT WAS A WORKING DAY AND INCOME TAX OFFICE WAS OPENED. THE NOTICE WAS ALSO NOT GIVEN TO THE PROCESS SERVER OF THE DEPARTM ENT FOR THE PURPOSE OF SERVICE UPON THE ASSESSEE. NO OUTWARD DAK REGISTER WAS PROD UCED TO SHOW NOTICE DATED 30.03.2007 WAS ACTUALLY ISSUED BY THE AO ON THE SAM E DAY. NO OTHER CORROBORATIVE EVIDENCE WAS PRODUCED TO SHOW THAT THE AO ISSUED NO TICE ON THE SAME DAY ON 30.03.2007. THE LD. CIT(A) EXAMINED AND CONSIDERED THE ISSUE OF SERVICE OF NOTICE THROUGH INSPECTOR IN DETAIL AND THE THEORY OF SERVI CE BY AFFIXTURE WAS NOT FOUND ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 28 JUSTIFIED. THE FINDING OF THE LD. CIT(A) ON THIS AS PECT IS MENTIONED AT PAGE 48 OF THE APPELLATE ORDER AS UNDER : AS THE REPORT OF THE INSPECTOR HAS NOT BEEN FOUND T O BE VERIFIED THROUGH AN AFFIDAVIT AND ALSO THE WITNESS TO THE SE RVICE OF NOTICE WHOSE NAME IS GIVEN IN THE REPORT HAS NOT BEEN FOUN D TO BE TRACEABLE TO GET A CONFIRMATION FROM SUCH WITNESS THAT THE DI SPUTED NOTICE WAS ACTUALLY SERVED BY AFFIXTURE ON 03.04.2007 OR NOT, THE CLAIM OF THE AO ABOUT SERVICE OF THE DISPUTED NOTICE HAS NOT BEEN F OUND TO BE SUBSTANTIATED. UNDER THESE FACTS AND CIRCUMSTANCES AND CONSIDERING THAT ALL DUE PROCEDURE AS PRESCRIBED FOR SERVICE OF NOTICE BY AFFIXTURE HAS NOT BEEN FOLLOWED AND THE WITNESS TO AFFIXTURE HAS NOT BEEN FOUND TO BE TRACEABLE, THE INITIALS SERVICE OF NOTICE BY AFFIXTURES AS CLAIMED BY THE AO HAS NOT BEEN FOUND TO BE RELIABLE. 11. THE ABOVE FINDINGS OF THE LD. CIT(A) HAVE NOT B EEN CHALLENGED BY THE REVENUE DEPARTMENT IN THE DEPARTMENTAL APPEALS. THE REFORE, IT IS PROVED ON RECORD THAT THE THEORY OF SERVICE OF NOTICE BY AFFIXTURE W AS WHOLLY UNRELIABLE AND UNJUSTIFIED AND WOULD NOT SUPPORT THE CASE OF THE A O. EVEN FOR THE SAKE OF ARGUMENTS, IT MAY BE BELIEVED THAT INSPECTOR HAS GO NE TO THE RESIDENCE OF ASSESSEE AT 33, CIRCULAR ROAD, FIROZABAD, THE ADDRESS MENTIO NED IN THE NOTICE U/S. 148 DATED 30.03.2007 AND THE INSPECTOR GAVE REPORT ON THE SAI D NOTICE THAT THE ASSESSEE DID NOT RESIDE AT THE ABOVE GIVEN ADDRESS, HOWEVER, IT WAS AN INCORRECT ADDRESS OF THE ASSESSEE FOR THE PURPOSE OF SERVICE. WHERE WAS THE NECESSITY FOR THE ASSESSING OFFICER TO DIRECT THE INSPECTOR FOR SERVICE OF NOTI CE THROUGH AFFIXTURE AT THE SAME INCORRECT ADDRESS. THE LD. COUNSEL FOR ASSESSEE SUB MITTED THAT THE AO PASSED THE RE- ASSESSMENT ORDER AT THE CORRECT ADDRESS OF THE ASSE SSEE, I.E, 29-30, GANESH NAGAR, ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 29 FIROZABAD AND ALSO SUBMITTED THAT SAME ADDRESS WAS AVAILABLE TO THE REVENUE DEPARTMENT PRIOR TO ISSUE OF NOTICE BECAUSE THE SEA RCH WAS CONDUCTED IN THE CASE OF ASSESSES PRIOR TO 148 PROCEEDINGS AND DURING THE CO URSE OF SEARCH, STATEMENTS WERE RECORDED ON 14/15.09.2006 ONWARDS AND PANCHNAMA WAS PREPARED IN WHICH THE ADDRESS OF THE ASSESSEE HAS BEEN CORRECTLY SHOWN AS 29-30, GANESH NAGAR, FIROZABAD. THE COPIES OF THE STATEMENTS OF THE ASSE SSEES AND PANCHNAMA ARE FILED IN THE PAPER BOOK AT PAGES 99 TO 115. THE LD. COUNS EL FOR THE ASSESSEE, THEREFORE, RIGHTLY CONTENDED THAT THE CORRECT ADDRESS OF THE A SSESSEE WAS AVAILABLE TO THE REVENUE DEPARTMENT PRIOR TO THE REOPENING OF THE AS SESSMENT. SINCE THE CORRECT ADDRESS WAS AVAILABLE WITH THE REVENUE DEPARTMENT O N 14/15.09.2006, THEREFORE, THERE WAS NO NEED TO MENTION INCORRECT ADDRESS OF T HE ASSESSEE IN THE NOTICE U/S. 148 DATED 30.03.2007 AS 33, CIRCULAR ROAD, FIROZABA D. THUS, THE LAST KNOWN ADDRESS OF THE ASSESSEE WAS AVAILABLE TO THE REVENU E DEPARTMENT, BUT NEITHER THE AO NOR THE INSPECTOR NOR OTHER RESPONSIBLE OFFICER OF THE REVENUE DEPARTMENT MADE ANY ATTEMPT TO SERVE THE ASSESSEE WITH THE NOT ICE U/S. 148 AT THEIR CORRECT ADDRESS BY ISSUING NOTICE ON 30.03.2007. THE THINGS WOULD NOT END HERE BECAUSE THE REPORT OF THE INSPECTOR WAS CLEARLY PROVED TO B E FALSE, AS THE REPORT OF THE INSPECTOR STATED THAT THE NOTICE WAS AFFIXED AT 33 CIRCULAR ROAD, FIROZABAD IN THE PRESENCE OF SHRI RAM KUMAR S/O SHRI DUSHYANT KUMAR, 35, NARI BASTI FIROZABAD. THE ASSESSEE, HOWEVER, FILED AFFIDAVIT BEFORE THE A O(PB-71) OF SHRI BALBIR SINGH, S/O SHRI JAYVEER SINGH, RESIDENT OF 35 NAI BASTI FI ROZABAD WHO HAS AFFIRMED IN HIS ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 30 AFFIDAVIT THAT HE IS RESIDING AT THAT ADDRESS AND N O PERSON BY THE NAME OF RAM KUMAR S/O SHRI DUSHYANT KUMAR WAS RESIDING AT HIS R ESIDENCE. THE AFFIDAVIT COULD NOT BE REBUTTED BY AO AS PER FINDING OF LD. CIT(A). THEREFORE, THE AFFIDAVIT OF SHRI BALBIR SINGH ALSO FALSIFIES THE REPORT OF THE INSPE CTOR THAT THE NOTICE DATED 30.03.2007 WAS TAKEN BY HIM AT THE INCORRECT ADDRES S OF THE ASSESSEE FOR THE PURPOSE OF SERVICE. THE ASSESSEE ALSO FILED CERTIFI CATE OF HEAD POST OFFICE, FIROZABAD (PB-70), IN WHICH IT IS CONFIRMED THAT TH E REGISTERED LETTER DATED 03.04.2007 IN THE NAME OF ASSESSEE WAS SENT BY ACIT , FIROZABAD WHICH IS DELIVERED BACK ON 09.04.2007, AS THE ADDRESSEE WAS NOT RESIDING AT THE GIVEN ADDRESS. THE LD. COUNSEL FOR THE ASSESSEE, THEREFOR E, RIGHTLY CONTENDED THAT NO ACTUAL NOTICE WAS ISSUED ON 30.03.2007 BECAUSE THE ENTIRE STORY OF ISSUE OF NOTICE THROUGH INSPECTOR WAS MANIPULATED BY THE REVENUE DEPARTMENT TO DEFEAT THE PROVISIONS OF LAW. THE LD. CIT(A) ALSO AT THE APPELLATE STAGE CAL LED FOR THE CORROBORATIVE EVIDENCES OF ISSUE OF NOTICE ON 30.03.2007, BUT NO EVIDENCE WAS PRODUCED BY THE AO. SINCE 30.03.2007 WAS A WORKING DAY AND EVEN POS T OFFICE WAS NOT CLOSED ON 31.03.2007 AND ADMITTEDLY, NO NOTICE WAS ISSUED TO THE ASSESSEE THROUGH REGISTERED POST ON 30.03.2007 WOULD PROVE THAT ACTUALLY NO NOT ICE WAS ISSUED TO THE ASSESSEE ON 30.03.2007. THE LD. COUNSEL FOR THE ASSESSEE RIG HTLY CONTENDED THAT IT WAS MANIPULATED AFFAIR OF THE AO TO TAKE THE NOTICE WIT HIN THE PERIOD OF LIMITATION BECAUSE THE AO AT THE ASSESSMENT STAGE ISSUED NOTIC E U/S. 142(1) DATED 07.11.2008 SEEKING INFORMATION FROM THE ASSESSEE, WHICH WAS SE NT AT THE CORRECT ADDRESS OF THE ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 31 ASSESSEE, I.E., 29-30, GANESH NAGAR, FIROZABAD, COP Y OF WHICH IS FILED AT PB-44. IT IS NOT CLARIFIED BY THE AO AS TO HOW HE HAS SUDDENL Y FOUND THE CORRECT ADDRESS OF THE ASSESSEE FOR THE PURPOSE OF CALLING INFORMATION FROM THE ASSESSEE DESPITE IT WAS AVAILABLE TO THE AO PRIOR TO THE ISSUE OF NOTICE U/ S. 148 BEING THE CORRECT ADDRESS NOTED IN THE SEARCH PROCEEDINGS. HONBLE GUJRAT HIG H COURT IN THE CASE OF KANU BHAI M. PATEL (HUF) VS. HIREN BHATT OR HIS SUCCESSO RS TO OFFICE AND OTHERS, 334 ITR 25 HELD AS UNDER : ON A PLAIN READING OF SECTION 149 OF THE INCOME-TAX ACT, 1961, IT IS APPARENT THAT UNDER THE PROVISION, THE MAXIMU M TIME LIMIT FOR ISSUANCE OF NOTICE UNDER SECTION 148 IS SIX YEARS F ROM THE END OF THE RELEVANT ASSESSMENT YEAR. THE EXPRESSION TO ISSUE IN THE CONTEXT OF ISSUANCE OF NOTICES, WRITS AND PROCESS, HAS BEEN AT TRIBUTED THE MEANING. TO SEND OUT; TO PLACE IN THE HANDS OF THE PROPER OFFICER FOR SERVICE. THE EXPRESSION SHALL BE ISSUED AS USED I N SECTION 149 WOULD THEREFORE, HAVE TO BE READ IN THE AFORESAID C ONTEXT. HELD, ALLOWING THE PETITION, THAT IN THE INSTANT CASE THE NOTICES UNDER SECTION 149 WERE IN RESPECT OF THE ASSESSMENT YEAR 2003-04. THE NOTICES WERE DATED MARCH 31, 2010. THE RECORD P RODUCED BEFORE THE COURT SHOWED THAT THE NOTICES HAD BEEN SENT FOR BOOKING TO THE SPEED POST CENTRE ONLY ON APRIL 7, 2010, IN THE ABS ENCE OF ANY EVIDENCE TO THE CONTRARY BEING POINTED OUT BY THE R ESPONDENTS, AS WELL IN THE LIGHT OF THE FACT THAT THE SAID POSITION AS CONFIRMED BY THE POSTAL DEPARTMENT HAD NOT BEEN CONTRAOVERTED BY THE REVENU E. IN THE CIRCUMSTANCES, THE NOTICES UNDER SECTION 148 IN REL ATION TO THE ASSESSMENT YEAR 2003-04, HAVING BEEN ISSUED ON APRI L 7, 2010 WHICH WAS CLEARLY BEYOND THE PERIOD OF SIX YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, WERE CLEARLY BARRED BY LIMITATION AND COULD NOT BE SUSTAINED. THE LD. DR, HOWEVER, RELIED UPON THE DECISION OF HO NBLE SUPREME COURT IN THE CASE OF R.K. UPADHYAYA VS. SHANABHAI P. PATEL, 166 ITR 163 IN WHICH THERE WAS ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 32 NO DISPUTE THAT THE NOTICE U/S. 147(B) OF THE IT AC T WAS ISSUED BY REGISTERED POST ON 31.03.1970 AND WAS RECEIVED BY THE ASSESSEE ON 03.0 4.1970. THEREFORE, IT WAS HELD THAT THE NOTICE WAS ISSUED WITHIN THE PERIOD OF LIM ITATION. WE MAY ALSO NOTE HERE THAT THE REVENUE DEPARTMENT ALSO RELIED UPON SECTIO N 292BB OF THE IT ACT, WHICH IS NOT APPLICABLE TO THE ASSESSMENT YEAR UNDER APPE AL, I.E., 2000-2001 BECAUSE IT IS APPLICABLE FROM 01.04.2008. CONSIDERING THE ABOVE D ISCUSSION AND IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE AND CONSIDERING THE F ACTS AND CIRCUMSTANCES NOTED ABOVE, IT IS CLEAR THAT NO NOTICE U/S. 148 DATED 30 .03.2007 WAS ACTUALLY ISSUED TO THE ASSESSEE ON 30.03.2007 I.E. WITHIN THE PERIOD OF LI MITATION. THE STORY PROPOUNDED BY THE AO CASTS A SERIOUS DOUBT IN SENDING OUT THE NOTICE THROUGH INSPECTOR OR PROPER OFFICER FOR SERVICE. THEREFORE, WE ARE OF TH E VIEW THAT NO VALID NOTICE HAS BEEN ACTUALLY ISSUED U/S. 148 ON 30.03.2007 WITHIN THE PERIOD OF LIMITATION. THEREFORE, ON THIS COUNT ALSO, THE RE-ASSESSMENT PR OCEEDINGS ARE LIABLE TO BE QUASHED. POINT NO. 3 IS ALSO DECIDED IN FAVOUR OF T HE ASSESSEE. POINT NO. 4 : WHETHER THERE WAS ANY VALID SERVICE OF NOTICE U/S . 148 OF THE IT ACT UPON THE ASSESSEE. 12. THE FACTS ARE SAME AS NOTED ABOVE AND IT WAS CL EAR THAT THE REVENUE NEVER ATTEMPTED TO SERVE THE NOTICE U/S. 148 UPON THE ASS ESSEE AT THE LAST KNOWN ADDRESS DESPITE BEING AWARE OF THE CORRECT ADDRESS OF THE A SSESSEE. ACCORDING TO THE REVENUE, THE NOTICE DATED 30.03.2007 COULD NOT BE S ERVED UPON THE ASSESSEE, ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 33 THEREFORE, THE COPY OF THE NOTICE U/S. 148 WAS GIVE N TO THE ASSESSEE ALONG WITH THE LETTER TO COMPLY THE REQUIREMENT OF THE NOTICE. THE LD. CIT(A) AT PAGE 48 OF THE APPELLATE ORDER WITH REGARD TO SERVICE OF PHOTOCOPY OF NOTICE NOTED THE CONTENTION OF THE ASSESSEE THAT PHOTOCOPY OF THE NOTICE ALONG WITH THE LETTER DATED 20.11.2008 GIVEN BY THE AO WOULD NOT SAVE THE PROCEEDINGS TO B E DECLARED VOID AB INITIO. THE LD. CIT(A), HOWEVER, DID NOT AGREE WITH THE SUBMISS IONS OF THE ASSESSEE BECASUEE UNDER THE SCHEME OF REASSESSMENT U/S. 147, NOTICE U /S. 148 SHOULD BE ISSUED WITHIN PRESCRIBED TIME AS PROVIDED U/S. 149 OF THE IT ACT. HE HAS RELIED UPON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. THREE DEE EXIM PVT. LTD. 20 TAXMAN.COM 146 IN SUPPORT OF HIS FINDING THAT AO HA S VALIDLY SERVED COPY OF NOTICE U/S. 148 DATED 30.03.2007 TO THE ASSESSEE BE FORE COMPLETING THE ASSESSMENT ORDER. THE LD. COUNSEL FOR THE ASSESSEE, HOWEVER, C ONTENDED THAT THE AFORESAID DECISION IS NOT APPLICABLE TO THE FACTS AND CIRCUMS TANCES OF THE CASE. IN THE CASE OF THREE DEE EXIM (SUPRA), THE FACTS WERE THAT THE NOT ICE U/S. 148 WAS ISSUED AT THE ADDRESS OTHER THAN THE PRESENT ADDRESS OF THE ASSES SEE. FURTHER, THE NOTICE U/S. 142(1) WAS ISSUED. IN RESPONSE TO THE SAID NOTICE, THE COUNSEL FOR THE ASSESSEE APPEARED BEFORE THE AO AND SOUGHT ADJOURNMENT. ON T HAT DATE, THE COUNSEL WAS GIVEN A PHOTOCOPY OF THE NOTICE ISSUED U/S. 148. BY A LETTER, THE ASSESSEE STATED THAT THE RETURN ORIGINALLY FILED BY IT MAY BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTICE U/S. 148 OF THE IT ACT. AFTER SOME QUERIES, THE ASSESSMENT ORDER WAS COMPLETED. IT WAS FOUND THAT DURING THE RE-ASSESSME NT PROCEEDINGS, NO OBJECTIONS ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 34 WERE RAISED OF ANY KIND WITH REGARD TO DEFECT OR IR REGULARITY IN THE NOTICE. IT WAS, THEREFORE, HELD THAT SINCE THE ASSESSEE PARTICIPATE D IN THE PROCEEDINGS, THEREFORE, IT WOULD CONSTITUTE A VALID SERVICE OF NOTICE. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT IN THE CASE OF ASSESSEE NEITHER HIS COUNSEL NOR THE ASSESSEE APPEARED AT ANY TIME BEFORE THE AO IN RE-ASSESSMENT PROCEEDI NGS, BECAUSE NO VALID NOTICE WAS SERVED UPON THE ASSESSEE. THE ASSESSEE REMAINED EXPARTE U/S. 147 READ WITH SECTION 144 OF THE IT ACT. THE ASSESSEE NEVER PARTI CIPATED IN THE PROCEEDINGS BEFORE THE AO AND WHEN THE NOTICE U/S. 142(1) DATED 07.11.2008 WAS ISSUED AT THE CORRECT ADDRESS OF THE ASSESSEE, THE ASSESSEE IMMED IATELY OBJECTED TO THE VALIDITY OF THE SERVICE OF NOTICE AND INITIATION OF PROCEEDINGS BEFORE THE AO. THE LD. COUNSEL FOR THE ASSESSEE, THEREFORE, SUBMITTED THAT THE DEC ISION RELIED UPON BY THE LD. CIT(A) IS, THEREFORE, NOT APPLICABLE. ON CONSIDERAT ION OF THE FACTS, WE AGREE WITH THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ABOVE DECISION OF HONBLE DELHI HIGH COURT IS CLEARLY DISTINGUISHABLE ON FACT S. THE AO IN THIS CASE PASSED THE ASSESSMENT ORDER ON 10.12.2008 EXPARTE U/S. 147/144 OF THE IT ACT. THE ASSESSEE DID NOT PARTICIPATE IN ANY PROCEEDINGS BEFORE THE A O AND WHEN NOTICE DATED 07.11.2008 WAS ISSUED AT THE CORRECT ADDRESS OF THE ASSESSEE, THE ASSESSEE IMMEDIATELY FILED OBJECTION REGARDING THE SERVICE O F NOTICE THROUGH AFFIXTURE AND INITIATION OF RE-ASSESSMENT PROCEEDINGS. THE OBJECT ION IS RAISED BY THE ASSESSEE VIDE LETTER DATED 20.11.2008 (PB-46) AND THE AO WIT HOUT WAITING FOR FURTHER PROCEEDINGS IN THE MATTER OR TO TAKE THE OBJECTIONS OF THE ASSESSEE TO A LOGICAL END, ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 35 HURRIEDLY PASSED THE EXPARTE ASSESSMENT ORDER WITHI N 20 DAYS OF THE REPLY OF ASSESSEE ON DATED 10.12.2008. THE LD. CIT(A) AT PAG E 61 OF THE APPELLATE ORDER HAS ALSO NOT APPROVED THE ORDER OF THE AO AND WAS OF TH E VIEW THAT IN SUCH CIRCUMSTANCES, THE ASSESSMENT ORDER MAY BE SET ASID E WITH DIRECTION TO THE AO TO PASS A FRESH ORDER AFTER DISPOSING OF THE OBJECTION S OF THE ASSESSEE TO THE NOTICE U/S. 148 BY SPEAKING ORDER. THE LD. CIT(A) WAS ALSO OF T HE VIEW THAT SINCE HE HAS NO POWER TO SET ASIDE THE ASSESSMENT, THEREFORE, AT TH E BEST HE COULD DIRECT THE AO TO DISPOSE OF THE OBJECTIONS OF THE ASSESSEE BY SPEAKI NG ORDER. SUCH AN OBSERVATION OF THE LD. CIT(A) WOULD CLEARLY PROVE THAT THE AO PASS ED RE-ASSESSMENT ORDER IN MOST MECHANICAL MANNER WITHOUT APPLYING MIND TO THE FACT S AND LAW. THE INITIATION OF THE RE-ASSESSMENT PROCEEDINGS AND ULTIMATELY CULMIN ATING INTO EXPARTE ASSESSMENT ORDER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, W OULD THROW SERIOUS DOUBTS IN THE CASE SET UP BY THE AO AGAINST THE ASSESSEE. THEREFO RE, THE FACTS OF THE CASE RELIED UPON BY THE LD. CIT(A) ARE CLEARLY DISTINGUISHABLE ON FACTS. THE LD. COUNSEL FOR THE ASSESSEE IN SUPPORT OF HIS CONTENTION THAT WHEN NO NOTICE HAS BEEN SERVED UPON THE ASSESSEE IN ACCORDANCE WITH LAW, THE ASSESSMENT ORD ER WOULD BE BAD IN LAW, ILLEGAL AND NOT VALID, RELIED UPON THE FOLLOWING DECISIONS : (I). CIT VS. RAMENDRA NATH GHOSH, 82 ITR 888 (SC) IN WHICH IT WAS HELD THAT IN THE ABSENCE OF SERVICE OF NOTICE UNDER S. 33B ON ASSESSEE IN ACCORDANCE ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 36 WITH LAW, IT COULD NOT BE SAID THAT PROPER OPPORTUN ITY WAS GIVEN TO THE ASSESSEE TO PUT FORWARD HIS CASE. (II). RAMESWAR SIRKAR VS. ITO, 88 ITR 374 (CAL.) IN WHICH IT WAS HELD THAT AS NO REASONABLE ATTEMPTS WERE MADE TO SERVE THE AS SESSEE PERSONALLY; SERVICE BY AFFIXATION WAS NOT PROPER. (III). CHANDRA AGENCIES VS. ITO, 89 ITD 1 (DEL.), I N WHICH IT WAS HELD. SINCE THE NOTICES UNDER S. 148 WERE AFFIXED ON THRE E ADDRESSES BUT NOT ON THE LAST KNOWN ADDRESS OF THE ASSESSEE WHICH WAS AVAILABLE O N RECORD AND THESE NOTICES WERE AFFIXED IN THE ABSENCE OF ANY WITNESS, THERE W AS NO VALID SERVICE EITHER ON THE ASSESSEE-FIRM OR ON ITS PARTNER AND THE ASSESSMENT COMPLETED UNDER S. 144/148 WAS NOT VALID. (IV). A.K. KOCHANDI & ORS. VS. AGRICULTURAL ITO, 11 0 ITR 406 (KER), IN WHICH IT WAS HELD, ASSESSMENT BEST JUDGMENT ASSESSMENT VALIDITY NOTICE NOT SERVED ON ASSESSEE IN ACCORDANCE WITH ORDER V, RR. 17, 18 & 19 ETC. EX PARTE ASSESSMENT NOT VALID. (V). BHAGWAN DEVI SARAOGI & ORS. VS. ITO, 118 ITR 908 (CAL.), IN WHICH IT WAS HELD, REASSESSMENT UNDER S. 147 VALIDITY OF NOTICE UNDE R S. 148-A NOTICE ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 37 UNDER S. 148 WITHOUT MENTIONING THE STATUS OF ASSES SEE IS INVALID DEPRIVING THE ITO OF HIS JURISDICTION TO PROCEED UNDER S. 147 AND THE QUESTION OF VALIDITY OF NOTICE BEING PURE QUESTION OF LAW GOING TO THE ROOT OF THE MATTER, CAN BE RAISED AT THE TIME OF HEARING EVEN IF NOT SPECIFICALLY TAKEN IN THE WR IT PETITION IF THE AUTHORITY CONCERNED DOES NOT ACQUIRE JURISDICTION IN THE ABSE NCE OF A VALID NOTICE BEING SERVED, THE ENTIRE PROCEEDING WILL BE WITHOUT JURIS DICTION AND VOID, AND EVEN CONSENT ON THE PART OF THE PETITIONER WOULD CONFER NO JURISDICTION ON THE ITO AND THERE CANNOT BE ANY QUESTION OF WAIVER. (VI). CIT VS. MINTU KALITA, 253 ITR 334 (GAU.), IN WHICH IT WAS HELD, SERVICE OF NOTICE UNDER S. 148 FOR THE PURPOSE OF I NITIATING PROCEEDING FOR REASSESSMENT IS NOT A MERE PROCEDURAL REQUIREMENT B UT IT IS A CONDITION PRECEDENT TO THE INITIATION OF PROCEEDINGS FOR REASSESSMENT; IN THE ABSENCE OF PROOF OF SERVICE OF NOTICE, REASSESSMENT WAS NOT JUSTIFIED. (VII). CIT VS. ESHAAN HOLDING (P) LTD., 344 ITR 541 (DEL.) IN WHICH IT WAS HELD AS UNDER : THE CIT(A) HAS TAKEN THE CORRECT VIEW OF THE MATTER IN HOLDING THAT THERE WAS NO VALID SERVICE OF NOTICE U/S 148 A ND HENCE THE REASSESSMENT PROCEEDINGS ARE NULL AND VOID. THE REC ORD OF THE DEPARTMENT ALREADY CONTAINED THE NEW ADDRESS OF THE ASSESSEE. BEFORE ISSUING THE NOTICE UNDER SECTION 148 IT WAS EXPECTE D OF THE ASSESSING OFFICER TO HAVE CHECKED UP IF THERE WAS ANY CHANGE OF ADDRESS, BECAUSE VALID SERVICE OF A NOTICE OF REOPENING THE ASSESSMENT IS A ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 38 JURISDICTIONAL MATTER AND THIS IS A CONDITION PRECE DENT FOR A VALID REASSESSMENT. THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE ACT DOES NOT PROVIDE FOR A FORMAL INTIMATI ON OF THE CHANGE OF ADDRESS AND THEREFORE THE ONLY PLACE WHERE ONE WOUL D FIND IF THERE HAS BEEN A CHANGE IN THE ADDRESS IS THE RETURN OF INCOM E (FOR LATER YEARS) CONTAINS FORCE. SO FAR AS THE PRESUMPTION TO BE DRAWN U/S 27 OF THE GENERAL CLAUSES ACT IS CONCERNED, IT CAN BE DRAWN ONLY IF THE NOTIC E IS PROPERLY ADDRESSED WHICH IS NOT THE CASE HERE. THE NOTICE SE RVED BY AFFIXTURE IS ALSO NOT VALID SERVICE BECAUSE IT WAS DONE AT THE O LD ADDRESS, WHICH IS NOT THE LAST-KNOWN ADDRESS, AS THE NEW ADDRESS HAS ALREADY BEEN INTIMATED TO THE DEPARTMENT IN THE RETURN OF INCOME FILED FOR THE ASSESSMENT YEAR 2003-04 AND THAT IS THE LAST-KNOWN ADDRESS. IT MAY BE A CASE OF BONA FIDE MISTAKE ON THE PART O F THE ASSESSING OFFICER. HOWEVER, A VALUABLE RIGHT ACCRUED TO THE R ESPONDENT AND, FURTHERMORE, WHEN THE TAX EFFECT IS ONLY RS.4,13,21 0/- (AS PER THE CBDT CIRCULAR, APPEALS WITH TAX EFFECT UPTO RS.4,00 ,000/- ARE NOT TO BE FILED). HENCE, NO INTERFERENCE NEEDED IN THE PRE SENT APPEAL. (VIII). CIT VS. HOTLINE INTERNATIONAL (P) LTD., 29 6 ITR 333 (DEL.), IN WHICH IT WAS HELD, THERE WAS NO VALID SERVICE OF NOTICE UNDER S. 148 WHERE IT WAS NOT TENDERED TO ASSESSEE OR HIS AGENT NOR REFUSED BY TH EM, NO EFFORT WAS MADE BY SERVING OFFICER TO LOCATE THE ASSESSEE BEFORE AFFIX ATION AND NOTICE SENT BY REGISTERED POST WAS NOT ACCOMPANIED BY ACKNOWLEDGEMENT DUE, HE NCE REASSESSMENT WAS BAD IN LAW. (IX). CIT VS. RAJESH KUMAR SHARMA, 311 ITR 235 (DE L.), IN WHICH IT WAS HELD AS UNDER : ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 39 SERVICE OF NOTICE UNDER S. 148 TO AN EMPLOYEE OF TH E ASSESSEE DID NOT AMOUNT TO SERVICE OF NOTICE ON THE ASSESSEE AS THERE IS NOTHING TO SUGGEST THAT THE SAID EMPLOYEE WAS AUTHORIZED TO ACCEPT ANY NOTICE ON BEHALF OF THE ASSESSEE OR WAS AN AGENT OF THE AS SESSEE; SERVICE OF NOTICE BY SPEED POST WAS ALSO NOT VALID AS THE SAME WAS SENT AT AN INCORRECT ADDRESS AND THE REVENUE HAS NOT SHOWN THA T IT WAS ADDRESSED CORRECTLY BUT THE RECEIPT PREPARED BY THE POSTAL DEPARTMENT WAS INCOMPLETE. 12.1 CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF THE ABOVE DECISION, IT IS CLEAR THAT CORRECT ADDRESS OF THE ASSESSEE WAS AVAILABLE TO THE REVENUE AT WHICH ADDRESS THE ASSESSMENT ORDER HAS BEEN PASSED BY THE AO AND NOTICE WAS ISSUED U/S. 142(1) ON 07.11.2008, THEREFORE, NO ATTEMPT HAS BEEN MADE TO SERVE THE NOTICE U/S. 148 UPON THE ASSESSEE AT THE LAST KNOWN CORRECT ADDRESS . GIVING A COPY OF THE NOTICE U/S. 148 ALONG WITH NOTICE U/S. 142(1) AT THE FAG E ND OF THE ASSESSMENT PROCEEDINGS WITHOUT DECIDING THE OBJECTIONS OF THE ASSESSEE IN PROPER PERSPECTIVE WOULD CLEARLY THROW SERIOUS DOUBTS ON THE STORY OF THE AO OF SERV ICE OF NOTICE IN ACCORDANCE WITH LAW. THEREFORE, THE LD. COUNSEL FOR THE ASSESSEE RI GHTLY CONTENDED THAT IT IS A MANIPULATED STORY MADE UP BY THE AO. THE INSPECTOR IS HIS SUBORDINATE AND NO REASONS HAVE BEEN GIVEN WHY THE ROUTINE PROCEDURE O F THE SERVICE OF NOTICE THROUGH REGISTERED POST OR THROUGH PROCESS SERVER HAVE NOT BEEN USED IN THIS CASE FOR THE PURPOSE OF SERVICE OF NOTICE AT THE CORRECT ADDRESS OF THE ASSESSEE. NO CORROBORATIVE EVIDENCES WERE FILED FOR ACTUALLY ISSUE OF NOTICE A GAINST THE ASSESSEE AT THE CORRECT ADDRESS ON 30.03.2007. THEREFORE, MERELY FORWARDING PHOTOCOPY OF NOTICE AT THE FAG END OF ASSESSMENT PROCEEDINGS BY THE AO WOULD C LEARLY PROVE THAT THE AO HAD ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 40 NO INTENTION TO SERVE THE ASSESSEE WITH NOTICE VALI DLY IN ACCORDANCE WITH LAW AND THE PROCEDURE PROVIDED. THUS, ASSUMPTION OF JURISDI CTION BY THE AO U/S. 148 IS WHOLLY UNJUSTIFIED AND BAD IN LAW IN THE FACTS AND CIRCUMSTANCES OF THIS CASE. THE LD. CIT(A) HEAVILY RELIED UPON THE DECISION OF HON BLE DELHI HIGH COURT IN THE CASE OF THREE DEE EXIM (SUPRA), WHICH IS CLEARLY DI STINGUISHABLE ON THE FACTS OF THE CASE. THE DECISIONS RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE SQUARELY APPLY TO THE FACTS OF THE CASE. THEREFORE, THERE WAS NO V ALID SERVICE OF NOTICE U/S. 148 OF THE IT ACT OR COPY OF NOTICE ON ASSESSEE IN THIS CA SE. WE, THEREFORE, HOLD THAT THERE IS NO VALID SERVICE OF NOTICE U/S. 148 AGAINST THE ASSESSEE IN THE FACTS OF THE CASE. THE AO, THEREFORE, DID NOT GET JURISDICTION TO PROC EED AGAINST THE ASSESSEE U/S. 147 OF THE IT ACT. ON THIS REASON ALSO, THE REASSESSMEN T PROCEEDINGS ARE LIABLE TO BE QUASHED. POINT NO. 4 IS, THEREFORE, DECIDED IN FAVO UR OF THE ASSESSEE. 12.2 CONSIDERING THE FINDINGS GIVEN ON ALL THE FOUR POINTS ABOVE, WE HOLD THAT THERE IS NO VALID INITIATION OF PROCEEDINGS U/S. 14 8 OF THE IT ACT. THERE IS ALSO NO VALID ISSUE OF NOTICE U/S. 148 OF THE IT ACT WITHIN THE PERIOD OF LIMITATION, THERE IS NO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT AND THAT THERE IS NO VALID SERVICE OF NO TICE UPON THE ASSESSEE OF THE NOTICE U/S. 148 OF THE IT ACT IN ACCORDANCE WITH LA W. THE ORDERS OF THE AUTHORITIES BELOW ARE, THEREFORE, SET ASIDE AND THE PROCEEDINGS U/S. 148 ARE QUASHED. SINCE THE PROCEEDINGS U/S. 148 HAVE BEEN QUASHED, THEREFORE, ALL RESULTANT ADDITIONS MADE BY ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 41 THE AO WOULD STAND DELETED ON ACCOUNT OF UNEXPLAINE D GIFT. SINCE THE LD. CIT(A) HAS ALREADY DELETED THE ADDITIONS ON MERITS AND AFT ER QUASHING OF THE REASSESSMENT PROCEEDINGS, SAME WOULD BE DEEMED TO BE DELETED. TH EREFORE, THE DEPARTMENTAL APPEALS ARE LEFT WITH ACADEMIC DISCUSSION ONLY, THE REFORE, WE DO NOT PROPOSE TO ADJUDICATE THE DEPARTMENTAL APPEALS ON MERITS. NO OTHER POINT IS ARGUED OR PRESSED. 13. IN THE RESULT, CROSS OBJECTION OF THE ASSESSEE IS ALLOWED AND DEPARTMENTAL APPEAL IS DISMISSED. REMAINING APPEALS AND CROSS-OBJECTIONS : 14. THE REMAINING DEPARTMENTAL APPEALS AND THE CROS S OBJECTIONS OF THE ASSESSEE ARE FILED AGAINST THE SAME COMMON ORDER OF THE LD. CIT(A), WHICH IS SUBJECT MATTER IN APPEAL IN THE CASE OF SHRI SATISH PRAKASH MITTAL ABOVE. THE LD. REPRESENTATIVES OF BOTH THE PARTIES STATED THAT FACTS ARE SAME IN ALL THE CASES AND IN THE CASE OF SHEELA RANI MITTAL, THE AO ALSO PASSED ASSESSMENT ORDER U/ S. 143(3) ON DATED 30.03.2006 AS WAS DONE IN THE CASE OF SATISH PRAKASH MITTAL. I N THE CASES OF REMAINING ASSESSEES, EARLIER THE RETURNS WERE PROCESSED U/S. 143(1) OF THE IT ACT. THEREFORE, FOLLOWING THE DECISION IN THE CASE OF SATISH PRAKAS H MITTAL, THE CROSS-OBJECTION OF THE ASSESSEE SHALL HAVE TO BE ALLOWED IN THE CASE O F SHEELA RANI MITTAL ALSO. IN THE CASES OF OTHER ASSESSEES EXCEPT ON POINT NO. 2, THE FINDINGS GIVEN ON POINT NO. 1, 3 ITA NOS. 554 TO 561/AGRA/2012 C.O. NOS. 02 TO 09/AGRA/2012 42 AND 4 IN THE CASE OF SATISH PRAKASH MITTAL (SUPRA) WOULD CLEARLY APPLY IN THESE CASES FOR THE PURPOSE OF QUASHING THE RE-ASSESSMENT PROCEEDINGS. IN VIEW OF THE ABOVE DISCUSSION AND FOLLOWING THE DECISION IN THE CASE OF SATISH PRAKASH MITTAL, REMAINING DEPARTMENTAL APPEALS ARE DISMISSED AND TH E CROSS OBJECTIONS OF THE ASSESSEES ARE ALLOWED. 15. IN THE RESULT, ALL THE CROSS OBJECTIONS OF THE ASSESSEE ARE ALLOWED AND ALL THE DEPARTMENTAL APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY