Assessment by serving notice at wrong address: ITAT orders fresh adjudication

Pradeep Jain Vs ITO (ITAT Delhi)

In the present case, it is noticed that the AO issued notices u/s 148 and 142(1) of the Act at the address D-60, Noida Authority, Sector-108, Noida. However, the assessment was framed by mentioning the address of the assessee as P-3, Shop No. LGF 20, Krishna Apra Plaza, Sector-18, Noida, therefore, there is force in the submission of the assessee that the notices u/s 148 and 142(1) of the Act were issued at a wrong address i.e. the plot which was claimed to be not constructed at that time and the ld. CIT(A) has also passed the impugned order without bringing any material on record that the notice for hearing was served upon the assessee. It is well settled that nobody should be condemned unheard as per the maxim “audi alteram partem”. I, therefore, by keeping in view the principles of natural justice, deem it appropriate to remand this case back to the file of the AO to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee.

FULL TEXT OF THE ITAT JUDGMENT

This is an appeal by the assessee against the order dated 28.03.2018 of ld. CIT(A)-I, Noida.

2. Following grounds have been raised in this appeal:

“1. That the Ld. Commissioner of Income Tax(Appeals) Noida has erred in law as well as in facts in dismissing the appeal for want of prosecution because:-

(a) On 14-03-2018 assessee/appellant sought adjournment when no date was granted and informed to fix date of hearing through fresh notice.

(b) No notice of hearing fixing the date for 27-03-2018 was ever received.

(c) Under the statutory provisions of section 250 it is essential to fix a date and place of hearing of the appeal by giving notice through the appellant and the AO but no such notice was served on the assessee/appellant or on his authorised representative.

2. That the order of the Ld, CIT(A) is liable to be quashed being bad in law as reasonable and sufficient opportunity was not provided to the assessee/appellant.
3. That the Ld. CIT(A) has further failed to appreciate that assessment made u/s 147/144 is bad in law because
   1.  No notice u/s 148 was ever served on the assessee for reopening the assessment.
   2.  Assessment was reopened on the basis of AIR information without making necessary enquiries and the letters mentioned were never served on the assessee.
   3. No notice u/s 143(2) was either issued or served upon the assessee which is mandatory to initiate assessment proceedings.
   4. No notice u/s 142(1) or show cause notice was ever served upon the assessee for making assessment ex parte u/s 144 as per statutory provisions of the Income Tax Act.

4. That the Ld. Commissioner of Income Tax (Appeals) has further failed to notice that the only addition made by the AO while passing ex parte order u/s 144 on account of non-explanation on source of investment for purchase of property of Rs. 37,45,000/- which was through account payee cheques/draft and source was not at all doubted.
5. That the Ld. Commissioner of Income Tax(Appeals) has grossly erred in deciding the appeal ex parte and failing in his duty to provide sufficient opportunity specifically when AO passed the assessment order u/s 144/147 of the Income Tax Act without serving any notice u/’s 148, 143(2), 142(1) or any show cause notice before completing the assessment.”

3. The main grievance of the assessee vide ground no. 2 relates to the reasonable and sufficient opportunity of being heard not provided by the ld. CIT(A).

4. Facts of the case in brief are that the AO on the basis of AIR information initiated the proceedings u/s 147 of the Income Tax Act, 1961 (hereinafter referred to as the Act) and issued notice to the assessee u/s 148 of the Act. Since, there was no compliance, the AO framed the assessment at an income of Rs.37,45,000/-.

5. Being aggrieved the assessee carried the matter to the ld. CIT(A) who dismissed the appeal ex-parte for non-prosecution by observing as under:

“2. The appeal of the appellant was fixed for hearing for 14.03.2018 and again for 27.03.2018. There has been no response. Neither the appellant has entered appearance nor any request for adjournment has been received. As the appellant is not keen on prosecuting its appeal the same is dismissed for want of prosecution. The impugned assessment order stands confirmed.”

6. Now the assessee is in appeal. The ld. Counsel for the assessee submitted that no notice for hearing u/s 148 of the Act was received by the assessee. He drew our attention towards page no. 22 of the assessee’s paper book which is the copy of the notice dated 28.03.2017 u/s 148 of the Act and submitted that the said notice was issued to the assessee at a wrong address and no reason to believe was mentioned in the said notice. It was further submitted that the notice u/s 142(1) of the Act dated 03.08.2017 was also issued at a wrong address. The aforesaid notices were not received by the assessee. Therefore, the AO was not justified in framing the ex-parte order and the ld. CIT(A) also without considering the facts in right perspective was not justified in dismissing the appeal for want of prosecution.

7. In his rival submissions, the ld. Sr. DR supported the order of the ld. CIT(A).

8. I have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is noticed that the AO issued notices u/s 148 and 142(1) of the Act at the address D-60, Noida Authority, Sector-108, Noida. However, the assessment was framed by mentioning the address of the assessee as P-3, Shop No. LGF 20, Krishna Apra Plaza, Sector-18, Noida, therefore, there is force in the submission of the assessee that the notices u/s 148 and 142(1) of the Act were issued at a wrong address i.e. the plot which was claimed to be not constructed at that time and the ld. CIT(A) has also passed the impugned order without bringing any material on record that the notice for hearing was served upon the assessee. It is well settled that nobody should be condemned unheard as per the maxim “audi alteram partem”. I, therefore, by keeping in view the principles of natural justice, deem it appropriate to remand this case back to the file of the AO to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee.

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