Wtax/385/2017 Of Achal Kumar Agrawal v. Pr. Commissioner Of Income Tax Gorakhpur And Another

Case :- WRIT TAX No. - 385 of 2017 Petitioner :- Achal Kumar Agrawal Respondent :- Pr. Commissioner Of Income Tax Gorakhpur And Another Counsel for Petitioner :- Vandeep Nath,Suyash AgarwalCounsel for Respondent :- S.S.C.,Ashish Agrawal,C.S.C. Hon'ble Rohit Ranjan Agarwal,J. 1. Heard Sri Suyash Agarwal, learned counsel for the petitionerand Sri Ashish Agrawal, learned counsel appearing forrespondents No.1 and 2. 2. Proceedings for reassessment under Section 148 of theIncome Tax Act was initiated by the Income Tax Department byinvoking relevant provisions and issuing notice and anassessment order was passed on 27.3.2015. The dispute is forthe assessment year 2007-08. 3. Sri Suyash Agrawal, learned counsel appearing for thepetitioner submitted that no notice under Section 148 of theIncome Tax Act was issued to the Assessee. He furthercontended that against the assessment order, the Assessee hadpreferred revision under Section 264 of the Income Tax Actwhere a ground was taken in the memo of revision that noticeunder Section 148 of the Income Tax Act dated 27.3.2014 wasnot validly served. He further contends that the RevisionalAuthority without venturing into the grounds so raised by theAssessee petitioner, had rejected the revision. He contends thatit was mandatory for the Revisional Authority to have decidedthe grounds so raised in the revision. 4. Per contra, Sri Ashish Agrawal, learned counsel appearing forthe respondents invited the attention of the Court to the findingsrecorded by the Assessing Authority wherein categorical findings has been recorded by the Assessing Authority that thenotice was served through speed post as well as by affixture butthe Assessee did not turn up. He invited the attention of theCourt to paras 3.4, 3.5 and 3.6 of the assessment order, which isextracted hereasunder : "3.4 Again, notice u/s 142(1) dated 23/02/2015 was issued fixing the dateof hearing on 04/03/2015 but again no compliance. 3.5 Inspector of this office vide his report dated 10/03/2015 intimated thatat present, assessee is posted as Customs Superintendent, at NepalganjRoad, Baharaich, (U.P.). Accordingly, notices u/s 142(1) dated 10/03/2015were issued at the address of residence (i.e. at Shankar Sadan, Near:Microwave Station, P.O. Railway, Kasya Road, Gorakhpur) and officeaddress at Bahraich but these notices were returned unserved with postalremarks as "Pavak ke gharwalaon ne lene se mana kiya……." "Praptkartayehan maujud nahin hai" etc. 3.6 However, when another notice u/s 142(1) dated 10/03/2015, fixing thedate of hearing on 16/03/2015 was served by affixure at Shankar Sadan,Gorakhpur on 13/03/2015 by the Inspector, assessee's letter dated18/03/2015 was received in this office on 20/03/2015 intimating thatassessee has received a call from Shankar Sadan, Gorakpur, (a proofenough to establish that persons of both places are well acquainted) andrequesting for another date which could not be allowed at this juncturewhen the case is to be barred by limitation on 31/03/2015. In fact to moveapplication so late for fixing another date is merely a ploy to scuttle theassessment proceedings. Here, mention must be made that show causenotices u/s 144 giving assessee a final opportunity of being heard withproposal of addition had already been issued on 19/03/2015 fixing thedate of hearing on 26/03/2015 which were also received back unserved." 5. He further contends that the findings recorded by theAssessing Authority was not put to challenge by the Assesseebefore the Revisional Authority and once the finding has notbeen assailed, the Revisional Authority has not recorded anyfinding as to the service of notice. 6. After hearing the counsel for the respective parties andperusal of record I find that the assessment order dated27.3.2015 takes note of the fact that the notice issued undersection 148 of Income Tax Act was served upon the Assessee and categorical findings has been recorded and the assessmentorder was passed. 5. He further contends that the findings recorded by theAssessing Authority was not put to challenge by the Assesseebefore the Revisional Authority and once the finding has notbeen assailed, the Revisional Authority has not recorded anyfinding as to the service of notice. 6. After hearing the counsel for the respective parties andperusal of record I find that the assessment order dated27.3.2015 takes note of the fact that the notice issued undersection 148 of Income Tax Act was served upon the Assessee and categorical findings has been recorded and the assessmentorder was passed. 7. As there was no challenge to the findings recorded by theAssessing Authority, the Revisional Authority has not venturedinto the arena and has dismissed the revision of the Assessee.The argument raised by the petitioner has no legs to stand as thefindings recorded by the Assessing Authority was not put tochallenge by the Assessee before any Forum. Raising of pleabefore this Court under Article 226 of the Constitution of Indiais not maintainable as the findings recorded by the AssessingAuthority was never challenged before the Appellate/RevisionalForum. 8. The petition being devoid of merit is hereby dismissed. Order Date :- 9.1.2023Kushal