Non service of notice at the updated email id – Assessment order quashed with a direction to AO to decide the issue afresh
There are various instances wherein the notices are issued at the old email id despite the new email id furnished by the Assessee at the portal.
Due to non-service of the notice at the updated email id, the notices often remained un-complied and the assessment is often completed on ex-parte basis. Here is one case wherein the ex-parte assessment order was passed with huge demand.
I have argued that the non-service of notice U/s 143(2) at the updated email id itself makes the proceeding null and void. As an alternative plea, I requested the matter be remanded back for deciding the issue afresh after considering the additional evidence as may be furnished by the Assessee during fresh proceedings. More particularly, the following submission was done during the course of final hearing:
a) Appellant requests your honour to kindly set aside the assessment order as it is done without following due procedure of law.
The case is squarely covered by the decision of the Bombay High Court in the case of Lok Developers Vs. DCIT [WP No. 1983 of 2022, 3037 of 2022 & 3042 of 2022 decided on 15.02.2023]. The copy of the said judgment of the Bombay High Court is enclosed in the Paper Book – 1as page No. 6.
b) Appellant is agreeable if the case is remanded back to the Assessing Officerfor deciding the case afresh on merits with proper opportunity of hearing & submission.
Both the grounds are allowed and AO is asked to examine whether the statutory notice U/s 143(2) is issued or not? AO has been asked to decide the issue afresh after considering additional evidence as may be furnished during assessment proceeding.
One may note that the non-service of notice at the registered email id makes the entire proceeding null and void. This is what has been held in of Lok Developers Vs. DCIT [WP No. 1983 of 2022, 3037 of 2022 & 3042 of 2022.
Further, there are plethora of judgement which has held that non-service of notice at the updated email id of assessee is non-issuance of notice as well. Few of the judgement relied by me during the course of arguments were as under:
| SN | Particulars | Observation |
| 1 | Jurisdictional Bombay HC Lok Developers Vs. DCIT [WP No. 1983/2022, 3037/2022 & 3042/2022 decided on 15.02.2023] |
Hon’ble Court has held as under:
“In our view the AO ought to have sent the notice u/s 148 to both the primary address and the email address mentioned in the last Return of Income filed to pre-empt a jurisdictional error on account of valid service; there was neither any cost to it or any prejudice to any party for sending it on more than one email in a given circumstance as in the present case. We see no wrong with the petitioner’s refusal to participate in a proceeding vitiated by valid service of notice”. |
| 2 | Jurisdictional Bombay HC
Mrs. Chitra Supekar Vs. ITO [WP No. 15580/2022] |
It was imperative for the AO to have checked if there was a change of address before initiating a proceeding; and that a valid
service of notice under section 148 is a condition precedent lest it would be a jurisdictional error. |
| 3 | ITAT Jaipur Natthi Singh Vs. ITO [ITA No. 117/JP/2023] AY 2011-12 |
Delay in filing ITAT appeal was granted due to CIT (A) in the spam folder of Assessee. |
| 4 | Mumbai ITAT Anidhi Impex Pvt Ltd Vs. ITO [ITA No. 2041/Mum/2017] |
Service of notice U/s 143(2) on a person not authorised to receive is bad in law and assessment order was quashed. |
| 5 | Delhi ITAT Abhinav Sehgal Vs. ITO [ITA No 518/Del/2020] |
No notice U/s 148 was served, Assessment order quashed |
| 6 | Delhi ITAT Gautam Automobiles P.Ltd.Vs ITO [ITA. No.1942/Del./2013] |
It has been held that issuance & service of notice u/s 143(2) at wrong address is invalid. |
| 7 | Calcutta HC Nita Roy Vs Union of India |
CIT Vs. Dr. Ajay Prakash
(2014) 42 Taxmann.com 387
9Del HC
CIT Vs. Rajeshkumar Sharma
(2017) 165 Taxman 488
10Pune ITAT
Anil Kishanlal Marda Vs. ITO
[ITA No.1763/PUN/2013]
In the context of section 143(2) Notice/ Rule 127, it is held that there is a difference between “issue” of notice and “service” of notice. Service of notice is a pre-condition for assuming jurisdiction to frame the assessment. If a notice is issued but is returned unserved by the postal authorities and thereafter no effort is made to serve another notice before the deadline, it shall be deemed to be a case of “non-service” and the assessment order will have to be quashed.11Mum ITAT
Heaven Distillery P Ltd Vs. ITO
(2017) 185 TTJ 197
12.
Bombay HC
CIT vs. Abacus Distribution Systems (India) Pvt. Ltd
[ Income tax Appeal No. 1382 of 2014, dated : 07/02/2017
The issue of a notice u/s 143(2) bearing the wrong (old) address of the assessee does not amount to a valid service of the notice u/s 282 r.w.s. 27 of the General Clauses Act. The non-service of a notice u/s 143(2) before the expiry of 12 months from the end of the month in which the return was filed renders the assessment void
13.
ITAT Mumbai
Shri Abhishek Acharya Vs ITO
[ITA No.5960/M/2018]Assessment Order Passed without Serving Notice u/s 143(2) on Correct Address as per ITR is Invalid.
The copy of the order as passed by ITAT, Nagpur bench is attached herewith:
