Wp/2387/2019 Of Nittur Vasanth Kumar Mahesh v. Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF KARNATAKA AT BENGALURU| DATED THIS THE 11 DAY OF APRIL, 2019 BEFORE. THE HON‘'BLE MRS. JUSTICE S.SUJATHA| W.P.No.2387/2019(T-IT). BEIT WEE NITTUR VASANTH KUMAR MAHESH|S/O G.VASANTH KUMAR|AGED ABOUT 40 YEARSR/AT:#51/12-46SANTOSHA NILAYA20 CROSS, 22 MATNBEHIND VIJAYANAGAR TIMC.VIJAYANAGAR, BENGALURU-560 040. _ PETITIONER| (BY SRI. GOUTAM S. BHARADWAJ, ADV.,) AND# ASSISTANT COMMISSIONER OFINCOME TAXCIRCLE 3(2)(1), BMTC BUILDING|80 FEET ROAD, 6 BLOCKNEAR KHB GAMES VILLAGEKORAMANGALA, BENGALURU-560 O95 RESPONDENT| (BY SRI. E.ILSANMATHI, ADV.,) THIS WP IS FILED UNDER ARTICLES 226 AND 2277 OFTHE CONSTITUTION OF INDIA PRAYING TO QUASH THEORDER DATED 19.12.2018 PASSED BY THE RESPONDENT ATBANGALORE AT ANNEXURE-A. THIS PETITION COMING ON FOR PRLY. HEARING IN|‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The petitioner-assessee has assailed the order.dated 19.12.2018 passed by the respondent-Revenue,|whereby the assessments are concluded under Section|144 of the Income Tax Act, 1961, relating to the.Assessment Year ZOL6-1/7. 2.The petitioner, an income tax assessee, filed.his returns for the Assessment Year 2016-17 Which was|selected for scrutiny and a Notice dated 24.08.2017|came to be issued under Section 143(2) of tne Act,|whicn was served on the petitioner on 19.12.2017 and|the same was followed by the Notice under Section|142(1) of the Act requesting to produce certain.qdocuments. Further, notices were issued under Section|143(2) of the Act and finally on 19.12.2018, thereafter |concludingexparte|assessment, which is impugnednerein. 3.The primary ground of chalienge to tneAssessment Order impugned herein is the Notice issued under Section 143(2) of the Act dated 24.08.2017|served on the assessee on 19.12.2017, is exfaciebad in.law in view of the proviso to Section 143(2) of the Act. Learned counsel referring to the judgment of the|Hon’ble.ApexCourtinthe|CAaSCof|Assistant|Commissioner of Income Tax and another -vs-|Hote| Blue Moonreported in(2010) 3 SCC 259submitted that omission on the part of the Assessing|Authority to issue Notice under Section 143(2) of the|Act within the time prescribed, cannot be a procedural|irregularity and the same is not curable. Therefore,|requirement of Notice under Section 143(2) of the Act.cannot be dispensed with. VALearned counsel appearing for the Revenue.would submit tnat tne Notice dated 24.08.201/7 wasdispatcned to the address of the assessee and the copy|of the speed post acknowledgment has been placed on|record for naving dispatcned the same. __It is submitted.that tne e-Portal of the Income Tax Department|showing the date of service as 19.12.2017 cannot be|considered as the service date ignoring the service of notice made through speed post by the Department on. 24.08.2017. Further, learned counsel refers to Section|292BB of the Act to contend that the petitioner-aSSeSSCEnasparticipatedintneassessmentproceedings and hence the grievance of the petitioner|inasmuch as non-service of notice within the period of six months from the end of the financial year in which|the return furnished is unjustifiable. In terms of|Section 292BB of the Act, it is deemed that the service|of notice is made upon him in terms of Section 143(2)|of the Act under proviso thereof. 5.ianavecarefully consideredtnerival.submissions of the parties and perused the material on|record. 6. Proviso to Section 143(2) of the Act is.extracted for ready reference wnich reads thus: Providedthat no notice under|this sub-section shall De served on the| assessee after the expiry of six months|from the end of the financial year in|which the return is furnished. ” reference: 5.ianavecarefully consideredtnerival.submissions of the parties and perused the material on|record. 6. Proviso to Section 143(2) of the Act is.extracted for ready reference wnich reads thus: Providedthat no notice under|this sub-section shall De served on the| assessee after the expiry of six months|from the end of the financial year in|which the return is furnished. ” reference: IWhere an assessee has|appearedIn|dhhyproceeding|co-operated in any inquiry relating to anassessment or reassessment, it snail bedeemed thet.qahnnotice Underdhhyprovision of this Act, whicn is required tobe served upon him, nas been dulyserved upon him in time in accordancewith the provisions of this Act and suchassessee snali be preciuded from takingany objection in any proceeding or inquiryunder this Act that the notice was- Or (a) not served upon him; or| (Db) not served upon him in time; or(c) served upon him in an improper(c) served upon him in an improperMla hhnl Provided tnat nothing contained in tnissection shall apply wnere the assesseehas raised such objection before thecompletionOf|SUCN|assessemen_.OF|reassessment. ~ 8.Notice under Section 143(2) of the Actdated 24.08.2017 is served on 19.12.2017 as per |e-Filing Anywhere Anytime, Income Tax Department,| Government of India portal (Annexure-D). Copy of thesaid document which is placed on record cannot be|disputed by the Department on the ground that tnereis |some technical error in the e-Portal maintained by thneDepartment that too at this juncture. Copy of the speedpost.acknowledgment.placedonrecord DYtneDepartment neitner Dears the signature of the assessee|nor indicates the date of dispatch/service. Indeed, it is.a vague and inchoate document. Hence, no reliance|can be placed on the same. | Q.Section 292BB of the Act contemplates, itshall be deemed that any notice under any provision of tne Act, which is required to be served upon him|(assessee) has been duly served upon nim in time, in.accordance with the provisions of the Act and such|assessee shall be precluded from taking any objection inany proceeding or inquiry under this Act, only where an|aSSeSSCEhasappearedinanyproceeding|co-operated in any inquiry relating to an assessment orre-assessment. Assessee’s appearance or co-operation|IS|sine-qua-nonto invoke Section J2O2BB of the Act. AS'/ Or | could be seen from the material on record, the assessee|neither appeared nor co-operated for inquiry during|assessment. iItis anexparte|assessment concluded bythe respondent—Authority, rejecting the time sought for|by the petitioner to file objections to the Notices issuedunder Section 143(2) and under Section 142(1) of the.Act. It is clear that.serviceof notice has to be made on.the assessee within a period of six months from the endof financial year in which return is furnished, not from|the date or|issuance.of notice. Tne relevant factor Is—the date ofserviceof Notice and tne same if to be!considered in accordance with tne e-Portal maintained|by the Department, an exception has to be taken with.the order impugned herein. In such circumstances,|Section 292BB would not attract and the arguments of |the learned counsel for the revenue deserves to be|negated. 10.|Further, it is well settled legal principle that.omission on the part of the Assessing Authority to issue|proper notice under Section 143(2) of the Act cannot be.a procedural irregularity and the same is not curable,| which is referred in.Hotel Blue Moon’s case (supra).The flaw found in the notice issued under Section|143(2) of the Act goes to the root of the matter and tne.Same cannot be cured or dispensed with, to consider tnecase on merits. The Assessment Order is passed basedon the invalid Notice, which does not survive. Notice is)the foundation. Assessment Order built upon such|defective notice would certainly fall to the ground. — 11.|For the reasons aforesaid, the writ petition.is alowed. The order dated 19.12.2018 passed by tne|respondent marked at Annexure-A is quasned. No order as to costs. TL Sd/-—JUDGE.