Income Tax - Notice under Section 148, Reassessment Proceedings, Principles of Natural Justice, Service of Notice - The petitioner, a partnership firm engaged in the business of road construction, mining and crushing, filed its return of income for the assessment year 2016-17 showing a gross total income of Rs.29,66,606/- and claimed a refund of Rs.1,42,310/-. After more than six years, the petitioner received a notice dated 10.02.2022 from the respondent department, intimating that certain notices under Sections 148 and 142(1) of the Income Tax Act, 1961 had been issued to the petitioner, to which the petitioner did not respond. The petitioner contended that it had not received any such notices, and that the department had sent the notices to an old and inactive email ID instead of the updated email ID provided by the petitioner - Whether the reassessment proceedings initiated by the respondent department under Section 147 read with Section 148 of the Income Tax Act, 1961, and the subsequent ex parte assessment order and penalty orders, are valid and sustainable in law - HELD - The assessment orders and the belated demand and penalty notices are vitiated due to procedural lapses and non-compliance with statutory provisions. The statutory notice under Section 142 of the Act was not served upon the petitioner at its registered email address as mandated under Section 282 of the Act, but was instead sent to an email address that was no longer operative, thereby violating the principles of natural justice - The Assessing Officer failed to check if there was any change in the address before initiating the proceedings, and that the valid service of notice under Section 148 is a jurisdictional requirement that must be mandatorily complied with - Further, the onus is on the Revenue to show that proper service of notice has been effected under Section 148, which it failed to do in the present case. Consequently, the Court quashed the reassessment proceedings, the ex parte assessment order, and the penalty orders, and remitted the matter to the concerned Assessing Officer for considering the matter afresh after providing due opportunity of hearing to the petitioner-assessee as well as to the respondents-Revenue, in accordance with law - The Court allowed the writ petitions

 

2025-VIL-310-JHR-DT

Neutral Citation: 2025:JHHC:33870-DB

 

IN THE HIGH COURT OF JHARKHAND AT RANCHI

 

W.P. (T) No. 1153 of 2022

WITH

W.P. (T) No. 1140 of 2022

 

Reserved on: 11.11.2025

Pronounced on: 13.11.2025

 

M/s GENERAL TRADERS

 

Vs

 

1. PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX, RANCHI

2. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, JAMSHEDPUR

3. NATIONAL FACELESS ASSESSMENT CENTRE, DELHI, INCOME TAX DEPARTMENT, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI

THROUGH ADDITIONAL/ JOINT/ DEPUTY/ ASSISTANT COMMISSIONER OF INCOME TAX

 

For the Petitioners: Mr. Biren Poddar, Sr. Advocate, Mr. Piyush Poddar, Advocate, Mr. Manav Poddar, Advocate, Mr. Deepak Kumar Sinha, Advocate, Mr. Mahendra Chowdhary, Advocate

For the Respondents: Mr. Kumar Vaibhav, Sr. S.C., Mr. Durgesh Agarwal, A.C. to Sr. S.C.

 

CORAM

HON’BLE THE CHIEF JUSTICE

HON’BLE MR. JUSTICE RAJESH SHANKAR

 

Per Tarlok Singh Chauhan, C.J.

 

1. Since similar facts and issues are involved in both the writ petitions, they are being heard together and disposed of by this common judgment.

 

2. For the sake of convenience, the substantial reliefs as sought for in W.P. (T) No. 1153 of 2022 are being reproduced herein-below: -

 

(a) For a declaration that the entire proceeding allegedly initiated by the Respondent Department in pursuance of purported notice issued under Section 148 of the Income Tax Act, 1961 including the reassessment proceedings under Section 147 of the Act, against the Petitioner for the Assessment Year 2016-17 is null and void-ab-initio, in view of the fact that none of purported notice issued under Section 148 dated 31.03.2021 as well as Notices dated 28.09.2021 and 13.01.2022 issued under Section 142(1) of the Act, were ever been served upon the Petitioner in order to comply the same.

 

(b) For quashing and setting aside the Notice dated 10.02.2022 (Annexure-2 Series) issued by the Respondent No. 3 to the Petitioner sent through Speed Post, received by the Petitioner on 12.02.2022, whereby the Petitioner for the first time came to know about the issuance of aforesaid Notices under Section 148 of the Act as well as under Section 142(1) of the Act.

 

(c) For quashing and setting aside the ex parte Assessment Order passed under Section 147 read with Section 144 read with Section 144B of the Income-Tax Act, 1961, passed on 29.3.2022 on total income of Rs.1,32,21,110/-and its Demand Notice of Rs.55,69,827/- dated 30.03.2022 (Annexure-10 & 10/1) by the Respondent No. 3 and the ex parte Penalty Orders under Section 271(1)(c) dated 20.09.2022 with its Demand Notice of Rs.24,35,454/- (Annexure-11 & 11/1) and ex parte Penalty Order under Section 271(1)(b) dated 13.09.2022 with its Demand Notice of Rs.30,000/- (Annexure-12 & 12/1) upon the Petitioner, passed by the Respondent No.2, all for the said assessment year 2016-17.

 

Case of the petitioner

3. The case of the petitioner is that it is a partnership firm engaged in the business of road construction, mining and crushing, etc. and had filed its return of income for the financial year 2015-16 relating to the assessment year 2016-17 on 17.10.2016 showing its gross total income of Rs.29,66,606/- and claimed refund to the tune of Rs.1,42,310/- after adjusting the TDS amount of Rs.10,58,997/-.

 

4. After lapse of more than six years, the petitioner has been served with a Notice dated 10.02.2022 issued by the respondent no.3 sent to the petitioner through speed post, received by the petitioner on 12.02.2022, wherein the petitioner was intimated that Respondent No.3 has not received any response from the petitioner for the assessment year 2016-17 in respect of certain notices sent to it. It is also mentioned in the said Notice that copies of such notices are attached, but no such attachment was found by the petitioner. However, a Notice dated 27.01.2022 issued under Section 142(1) of the Income-Tax Act, 1961 (for brevity hereinafter referred to as ‘the Act’) was attached along with ANNEXURE, wherein the following, inter alia, is mentioned: -

 

 

5. It is further averred that since the year 2019 the petitioner has been making all the correspondences with the Respondent-Department on its e-mail ID i.e. generaltraders.in@gmail.com and the Respondent Department has also used the said e-mail ID of the petitioner for sending all the information.

 

6. According to the petitioner, none of the notices has been served upon the petitioner by the Respondent Department on the aforesaid email ID nor the same was sent through the speed post and the entire proceedings initiated by the Respondent Department was in pursuant to the purported notice issued under Section 148 of the Act including the reassessment proceedings under Section 147 of the Act against the petitioner for the assessment year 2015-16 are null and void ab initio.

 

7. It is reiterated that none of the purported notices issued under Section 148 dated 31.03.2021 as well as Notices dated 28.09.2021 and 13.01.2022 issued under Section 142(1) of the Act, were ever been served upon the petitioner in order to comply the same. It is only through Notice dated 11.02.2022 sent through speed post which was received by the petitioner on 12.02.2022, whereby the petitioner for the first time came to know about the issuance of aforesaid Notices under Section 148 of the Act as well as under Section 142(1) of the Act and immediately thereafter, approached the Court by filing the writ petitions.

 

8. During the pendency of the writ petitions, ex parte assessment order under Section 147 read with Section 144 read with Section 144B of the Act was passed by the respondent no.3 on 29.03.2022 on total income of Rs.1,32,21,110/- raising a tax demand of Rs.55,69,827/- and thereafter penalty orders under Sections 271(1)(c) dated 20.09.2022 imposing a penalty of Rs.24,35,454/- and a penalty order under Section 271(1)(b) dated 13.09.2022 imposing a penalty of Rs.30,000/- upon the petitioner were passed by the respondent no.2 for the year under consideration i.e. for the assessment year 2016-17, constraining the petitioner to amend the writ petitions and claiming the reliefs as quoted above.

 

Counter affidavit of respondent no.1

9. The respondent no.1 filed a counter affidavit wherein it has been averred that from the online records it is revealed that Notice under Section 148 of the Act was issued by the Assessing Officer to the petitioner on 31.03.2021 through departmental online system popularly known as Income Tax Business Application (hereinafter referred to as ‘ITBA’). The Notice was immediately reflected in the e-proceeding account of the assessee-petitioner. As per online record Notice under Section 148 dated 31.03.2021 was served on the assessee-petitioner on 31.03.2021 through e-proceeding account which is still active. Therefore, the contention of the assessee-petitioner that the Notice under Section 148 was not served on it is factually incorrect.

 

10. Similarly, it appears from the online record that Notice under Section 142(1) was issued by the Assessing Officer to the assessee-petitioner on 28.09.2021 through departmental online ITBA system. The Notice was immediately reflected in the e-proceeding account of the assessee-petitioner. Therefore, again the contention of the assessee-petitioner that the Notice under Section 142(1) was not served on it is also not correct.

 

11. It has been mentioned that assessee-petitioner that the assessee-petitioner has filed its return of income till assessment year 2018-19 and the e-mail ID mentioned was as prafull-m@satyam.net.in in its each returns of income. At the same time, it is also mentioned that this e-mail id is still linked with its e-proceeding account, as the assessee has not changed it as yet. Accordingly, all the Notices issued to the assessee-petitioner are legal and valid and as per law.

 

Rejoinder of the petitioner

12. The petitioner has filed rejoinder reiterating the averments made in the petition and it has further been mentioned that though the petitioner had filed the returns for the assessment year 2018-19 on 30.03.2019 mentioning the e-mail ID as prafull-m@satyam.net.in. However, after filing of the aforesaid returns for the assessment year, the petitioner came to know that the said e-mail ID which was created by the petitioner from Satyam Company, became inactive due to the fact that the said Satyam Company itself was closed and amalgamated with another company. As such, the petitioner furnished and uploaded another e-mail ID being generaltraders.in@gmail.com on 22.07.2020 for the purpose of communication, in his profile at the IT Portal and removed the aforesaid earlier e-mail ID being prafull-m@satyam.net.in from the IT portal and immediately thereafter on the same day i.e. 22.07.2020 at 1:54 p.m., the petitioner received a confirmatory e-mail from the Income Tax Department’s e-mail ID being DONOTREPLY@incometaxindiaefiling.gov.in at the petitioner’s aforesaid new e-mail ID generaltraders.in@gmail.com confirming therein that the profile details of the petitioner has been updated successfully and the transaction id is 8705745824.

 

13. It was pursuant to the aforesaid change of e-mail ID for communication to the petitioner that the Income Tax Department thereafter started continuously sending the communications to the petitioner at the newly updated profile and some of such communications received from the Income Tax Department were on 22.11.2020, 26.11.2020 and 27.11.2020. All these communications were received by the petitioner from the Income Tax Department at its new e-mail ID before 31.03.2021 i.e. the date alleged service of notice under Section 148 of the Act at the petitioner’s old closed and inactive e-mail being prafull-m@satyam.net.in. Even immediately after 31.03.2021 (alleged date of service of notice under Section 148), the petitioner received two communications from the IT Department on 09.04.2021 at his new updated profile e-mail ID generaltraders.in@gmail.com for the assessment year 2016-17, the subject matters of these writ petitions, attaching therewith the orders relating to rectification under Section 154 of the Act for the said assessment year. Therefore, the contention of the IT Department of the respondents that the said e-mail ID prafull-m@satyam.net.in is still active is not correct and rather misleading.

 

Findings of the Court

14. Heard the learned counsels for the parties and perused the materials placed on record.

 

15. In order to appreciate the controversial questions, it shall first be apt to reproduce Rule 127 of the Income-Tax Rules, 1962 which provides for service of notice, summons etc which reads as under: -

 

“127. Service of notice, summons, requisition, order and other communication.

(1) For the purposes of sub-section (1) of section 282, the addresses (including the address for electronic mail or electronic mail message) to which a notice or summons or requisition or order or any other communication under the Act (hereafter in this rule referred to as "communication") may be delivered or transmitted shall be as per sub-rule (2).

 

(2) The addresses referred to in sub-rule (1) shall be –

 

(a) for communications delivered or transmitted in the manner provided in clause (a) or clause (b) of sub-section (1) of section 282-

 

(i) address available in the PAN database of the addressee; or

(ii) the address available in the income-tax return to which the communication relates; or

(iii) the address available in the last income-tax return furnished by the addressee; or

(iv) in the case of addressee being a company, address of registered office as available on the website of Ministry of Corporate Affairs:

 

Provided that the communication shall not be delivered or transmitted to the address mentioned in item (i) to (iv) where the addressee furnishes in writing any other address for the purposes of communication to the income-tax authority or any person authorised by such authority issuing the communication:

 

Provided further … … …”

 

16. It shall also be apt to reproduce Section 148 of the Act which reads as under: -

 

“148. Issue of notice where income has escaped assessment.

Before making the assessment, reassessment or re-computation under section 147, and subject to the provisions of section 148A, the Assessing Officer shall serve on the assessee a notice, along with a copy of the order passed, if required, under clause (d) of section 148A, requiring him to furnish within such period, as may be specified in such notice, a return of his income or the income of any other person in respect of which he is assessable 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 required to be furnished under section 139:

 

Provided that no notice under this section shall be issued unless there is information with the Assessing Officer which suggests that the income chargeable to tax has escaped assessment in the case of the assessee for the relevant assessment year and the Assessing Officer has obtained prior approval of the specified authority to issue such notice:

 

Provided further that no such approval shall be required where the Assessing Officer, with the prior approval of the specified authority, has passed an order under clause (d) of section 148A to the effect that it is a fit case to issue a notice under this section.

 

Explanation 1.–For the purposes of this section and section 148A, the information with the Assessing Officer which suggests that the income chargeable to tax has escaped assessment means, –

 

(i) any information in the case of the assessee for the relevant assessment year in accordance with the risk management strategy formulated by the Board from time to time;

 

(ii) any audit objection to the effect that the assessment in the case of the assessee for the relevant assessment year has not been made in accordance with the provisions of this Act; or

 

(iii) any information received under an agreement referred to in section 90 or section 90A of the Act; or

 

(iv) any information made available to the Assessing Officer under the scheme notified under section 135A; or

 

(v) any information which requires action in consequence of the order of a Tribunal or a Court.

 

Explanation 2.–For the purposes of this section, where, –

 

(i) a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A, on or after the 1st day of April, 2021, in the case of the assessee; or

 

(ii) a survey is conducted under section 133A, other than under sub-section (2A) of that section, on or after the 1st day of April, 2021, in the case of the assessee; or

 

(iii) the Assessing Officer is satisfied, with the prior approval of the Principal Commissioner or Commissioner, that any money, bullion, jewellery or other valuable article or thing, seized or requisitioned under section 132 or section 132A in case of any other person on or after the 1st day of April, 2021, belongs to the assessee; or

 

(iv) the Assessing Officer is satisfied, with the prior approval of Principal Commissioner or Commissioner, that any books of account or documents, seized or requisitioned under section 132 or section 132A in case of any other person on or after the 1st day of April, 2021, pertains or pertain to, or any information contained therein, relate to, the assessee, the Assessing Officer shall be deemed to have information which suggests that the income chargeable to tax has escaped assessment in the case of the assessee where the search is initiated or books of account, other documents or any assets are requisitioned or survey is conducted in the case of the assessee or money, bullion, jewellery or other valuable article or thing or books of account or documents are seized or requisitioned in case of any other person.

 

Explanation 3.–For the purposes of this section, specified authority means the specified authority referred to in section 151.”

 

17. Section 282 of the Act reads as under: -

 

“Service of notice generally.

282. (1) The service of a notice or summon or requisition or order or any other communication under this Act (hereafter in this section referred to as "communication") may be made by delivering or transmitting a copy thereof, to the person therein named, -

 

(a) by post or by such courier services as may be approved by the Board; or

(b) in such manner as provided under the Code of Civil Procedure, 1908 (5 of 1908) for the purposes of service of summons; or

(c) in the form of any electronic record as provided in Chapter IV of the Information Technology Act, 2000 (21 of 2000); or

(d) by any other means of transmission of documents as provided by rules made by the Board in this behalf.

 

(2) The Board may make rules providing for the addresses (including the address for electronic mail or electronic mail message) to which the communication referred to in sub-section (1) may be delivered or transmitted to the person therein named.

 

Explanation. - For the purposes of this section, the expressions "electronic mail" and "electronic mail message" shall have the meanings as assigned to them in Explanation to section 66-A of the Information Technology Act, 2000 (21 of 2000).”

 

18. On perusal of the documents brought on records before this Court and considering the submissions made on behalf of the parties, this Court is of the view that the assessment orders impugned herein and the belated Demand and Penalty Notices are vitiated due to procedural lapses and non-compliance with statutory provisions. The statutory notice under Section 142 of the Act was not served upon the petitioner at its registered e-mail address as mandated under Section 282 of the Act. Instead, this was sent on an e-mail address that was no longer operative, thereby violating the principles of natural justice.

 

19. Furthermore, the petitioner had a legitimate expectation arising out of consistent past practice that all communications will be sent to its registered e-mail address after the same has been successfully updated by transaction ID 8705745824 dated 22.07.2020 at 1:54 p.m. The failure to adhere to this established protocol and absence of proper service of notices invalidates the subsequent assessment proceedings and ex parte orders passed by the respondents.

 

20. Apart from the above, it is imperative for the Assessing Officer to have checked if any change in address before initiating a proceeding and that a valid service of notice under Section 148, given the fact that the valid service of notice under Section 148 is a condition precedent, lest it would be a jurisdictional error.

 

21. By now, it is well settled that under Section 148 of the Act, the issue of notice to the assessee and service of such notice upon the assessee are jurisdictional requirements that must be mandatorily complied with. They are not procedural requirements.

 

22. Equally it is settled proposition that for the Assessing Officer to exercise jurisdiction to reopen an assessment notice under Section 148(1) has to be mandatorily issued to the assessee. Further, the Assessing Officer cannot complete the reassessment without service of the notice so issued upon the assessee in accordance with Section 282(1) of the Act read with Order V Rule 12 and Order III Rule 6 of the Code of Civil Procedure.

 

23. The onus is on the Revenue to show that proper service of notice has been effected under Section 148 of the Act on the assessee or an agent duly empowered by him to accept notices on his behalf. In the present case, the Revenue has failed to discharge that onus.

 

24. The learned counsel for the respondents-Revenue would, however, argue that the respondents had, in fact, served the notice on the assessee-petitioner on 31.03.2021 through e-proceeding account by placing the same on the e-Portal and, therefore, presumption can be drawn that the petitioner was having knowledge of the notice/reminder which was placed on the e-Portal and there was no requirement of serving the notice personally through e-Portal as permitted under Section 144B(6) of the Act pertaining to faceless assessment.

 

25. However, even this contention is without merit, firstly for the reason that that the provision of Section 144B(6) which was relied upon by the respondents was itself introduced by the legislation subsequent to the proceedings on 29.03.2022 and even otherwise, admittedly, the petitioner has been issued impugned notices after a lapse of more than six years and the petitioner cannot be expected to keep the e-Portal of the Department open all the time so as to have acknowledge of what the Department is supposed to be doing with regard to the submissions of forms, etc. In coming to such conclusion, we have drawn support by the Division Bench judgment of Punjab & Haryana High Court in Munjal BCU Centre of Innovation and Entrepreneurship v. Commissioner of Income Tax (Exemptions), [2024] 160 taxmann.com 629, wherein the Court after reproducing the provision of Section 282 of the Income-Tax Act, 1961 and Rule 127(1) of the Income Tax Rules, 1962 observed as under: -

 

“8. In view of the above, it is essential that before any action is taken, a communication of the notice must be in terms of the provisions as enumerated hereinabove. The provisions do not mention of communication to be "presumed" by placing notice on the e-portal. A pragmatic view has to be adopted always in these circumstances. An individual or a Company is not expected to keep the e-portal of the Department open all the time so as to have knowledge of what the Department is supposed to be doing with regard to the submissions of forms etc.. The principles of natural justice are inherent in the income tax provisions and the same are required to be necessarily followed.

 

9. Having noticed as above, this Court is of the firm view that the petitioner has not been given sufficient opportunity to put up his pleas with regard to the proceedings under Section 12A(1)(ac) (iii) of the Act of 1961 and as he was not served with any notice. Therefore, he would be entitled to file his reply and the Department would of course be entitled to examine the same and pass a fresh order thereafter.

 

10. In view of the above, Writ Petition is allowed and the order dated 16.01.2023 (Annexure P-5) is quashed and set aside. The Department would provide an opportunity of hearing to the petitioner and they will also allow the petitioner to appear personally for the purpose and pass a speaking order independent of the order passed earlier by them on 16.01.2023. The same shall be done expeditiously provided the petitioner file his reply within a period of three weeks.”

 

26. The aforesaid judgment in Munjal BCU Centre of Innovation and Entrepreneurship was thereafter followed by the High Court of Chhattisgarh in Nitesh Kumar Goyal v. Deputy Commissioner of Income-tax, [2025] 173 taxmann.com 979.

 

27. In somewhat identical situation as obtaining in the instant case where the e-mail address had been changed by the assessee and thereafter the assessee continuously used the new profile in its latest income-tax returns and the issue of service of notice came up before a Division Bench of the Allahabad High Court in Grs Hotel (P.) Ltd. v. Union of India, [2024] 160 taxmann.com 125, wherein it was observed as under: -

 

“20. As far as the present case is concerned, it has been the consistent stand by the petitioner that he has used or made available the e-mail ID: taxmohit56@gmail.com for e-filing of his income-tax return even since the Assessment Year 2020-21 and the same has been used by him even for filing of the latest income-tax return for the Assessment Year 2022-23. Further, the said email ID has been also mentioned by him in the income-tax return and the same is relatable to PAN data base and also mentioned in the master data of the petitioner's Company as available from the official website of the Ministry of Corporate Affairs at the relevant time. Therefore, taking a holistic view of the matter, it has to be held that the e-mail ID: taxmohit56@gmail.com is the registered e-mail address of the petitioner company and it is the e-mail ID, which has been made available to the Authority by the assessee.

 

21. Further, there is another aspect of the matter, in as much as this Court finds that a notice issued under section 148A(b) of the Act, 1961 to the registered email ID of the assessee is not an empty formality as the issuance of the notice and service of such notice upon the assessee are jurisdictional requirement that must be mandatorily complied with as it provides an opportunity to the addressee to satisfy the Assessing Officer with his reply, even before the issuance of the notice under section 148 of the Act, 1961. The said right of the assessee has to be understood in the context that before the issuance of the notice under section 148 of the Income-tax Act, the Assessing Officer is enjoined upon as per section 148A (d) of the Act, 1961 to decide, on the basis of material available on record including reply of assessee, whether or not it is a fit case to issue a notice under section 148 of the Act, 1961, by passing an order.

 

22. In the present case, the notice under section 148A(b) of the Act, 1961 has not been issued on the registered email address of the petitioner's company. However, as pointed out by the learned Counsel for the respondents that the said point was not raised by the petitioner in the re-assessment proceedings presently pending before the Assessing Officer and in a way has contended that the said issue stands waived by the petitioner. In this context, it would be profitable to quote the conclusion of a judgment passed by the Delhi High Court, wherein the Division Bench had examined an Appeal from the ITAT (Income Tax Appellate Tribunal), which was challenged on similar grounds. The Division Bench after recording the contention of the parties, not only dismissed the appeal of the department, but also held in the said judgment CIT v Chetan Gupta [2015] 62 taxmann.com 249/[2016] 382 ITR 613 (Delhi), inter-alia that

 

“46. To summarize the conclusions:

(i) Under Section 148 of the Act, the issue of notice to the Assessee and service of such notice upon the Assessee are jurisdictional requirements that must be mandatorily complied with. They are not mere procedural requirements.

 

(ii) For the AO to exercise jurisdiction to reopen an assessment, notice under section 148 (1) has to be mandatorily issued to the Assessee. Further the AO cannot complete the reassessment without service of the notice so issued upon the Assessee in accordance with Section 282 (1) of the Act read with Order V Rule 12 CPC and Order III Rule 6 CPC.

 

(iii) Although there is change in the scheme of Sections 147, 148 and 149 of the Act from the corresponding Section 34 of the 1922 Act, the legal requirement of service of notice upon the Assessee in terms of Section 148 read with Section 282 (1) and Section 153 (2) of the Act is a jurisdictional pre-condition to finalizing the reassessment.

 

(iv) The onus is on the Revenue to show that proper service of notice has been effected under section 148 of the Act on the Assessee or an agent duly empowered by him to accept notices on his behalf. In the present case, the Revenue has failed to discharge that onus.

 

(v) The mere fact that an Assessee or some other person on his behalf not duly authorised participated in the reassessment proceedings after coming to know of it will not constitute a waiver of the requirement of effecting proper service of notice on the Assessee under section 148 of the Act.

 

(vi) Reassessment proceedings finalised by an AO without effecting proper service of notice on the Assessee under section 148 (1) of the Act are invalid and liable to be quashed.

 

(vii) Section 292 BB is prospective. In any event the Assessee in the present case, having raised an objection regarding the failure by the Revenue to effect service of notice upon him, the main part of Section 292 BB is not attracted”

 

23. To the same effect is the judgment of the Bombay High Court in Mrs. Chitra Supekur 170 [2023] 149 taxmann.com 26/292 Taxman 511/453 ITR 530 [Writ Petition No. 15580 of 2022, dated 15-2-2023] wherein the Division Bench concluded as herein under-

 

“7. We have heard both counsels at length and have perused the proceedings we agree with the view taken by the Delhi High Court in the case of CIT v. Eshaan Holding (P) Ltd 5 upholding the view of the ITAT that if there is no valid service of notice under section 148, the reassessment proceedings are null and void as also the decision of the Punjab and Haryana High Court in the case of CIT v. Avtar Singh 6 which held that service of notice under section 148 is a condition precedent for making reassessment or re-computation under section 147 of the Act.

 

8. In our view, before issuing the notice under section 148A (b) it was imperative for the AO to have checked if there was a change of address. A condition precedent for any proceeding including a proceeding u/s. 148A, is a valid service of notice, lest it would be a jurisdictional error. With regard to, the first notice dated 20th March 2022, it is the case of the petitioner that they had not received any notice dated 20th March 2022 and the revenue contended that it was served through speed post at the last known address. It is evident that though the respondents had the new address of the petitioner as evinced from the ITR filed on 10th January 2021, the respondents chose to send the notice to their old address. We also find no averment or proof of the service of notice dated 20th March 2022 on the petitioner in respondent's affidavit in reply dated 14th November 2022. The cascading effect of non-service was the petitioner did not get an opportunity to respond to the notice. Consequently, the notice dated 20th March 2022 and the proceedings thereafter are void. Apropos section 151(ii) of the Act the sanction from the PCCIT ought to have been taken when order was sought to be passed beyond the period of three years ie beyond 31st March 2022 on 5th April 2022. Consequently, the notice dated 20th March 2022 and order dated 5th April 2022 deserves to be set aside on account of jurisdictional error Le for want of service and consequently, for non-compliance with the provisions of the Act.”

 

24. Further in the judgment passed in Lok Developers v. Dy CIT [2023] 149 taxmann.com 93/455 ITR 399 [Writ Petition No 1983 of 2022, dated 15-2-2023] wherein the issue before the Bombay High Court was as to whether subsequent proceedings initiated by the revenue authorities for non-compliance of notice under section 148 under the Act would be vitiated on account of notice under section 148 of the Act being served on the secondary email id registered with PAN instead of the registered primary email id or updated email ID filed with the last return of income. The Division Bench, after hearing both the parties, concluded inter- alia:

 

"..... In our view the AO clearly erred in issuing a 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 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.

 

This Court in the case of Mrs. Chitra Supekar v. ITO in Writ Petition No. 15580 of 2022 has held that it was imperative for the AO to have checked if there was 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."

 

25. Recently, the Delhi High Court in the case of Jyoti Narang v. ITO [Writ Petition (C) No. 9289 of 2023, dated 14-7-2023] has also set aside the penalty and demand notice on the ground that the show cause notice was issued on a wrong E-mail ID.”

 

28. For all the aforesaid reasons, the purported notices issued under Section 148 of the Act including reassessment proceedings under Section 147 of the Act as also under Section 142(1) of the Act against the petitioner-assessee, as well as the ex parte assessment orders passed under Section 147 read with Section 144 read with Section 144B of the Act and ex parte Penalty Orders under Sections 271(1)(c) and 271(1)(b) of the Act, which are subject-matter of both these writ petitions, cannot be sustained in the eyes of law and as such, the same are quashed. Accordingly, the matter is remitted to the concerned Assessing Officer for considering the matter afresh after providing due opportunity of hearing to the petitioner-assessee as well as to the respondents-Revenue, by passing a fresh order in accordance with law expeditiously. The parties are directed to appear before the concerned Assessing Officer on 28.11.2025 for the said purposes.

 

29. With the aforesaid directions and observations, these writ petitions are disposed of, leaving the parties to bear the costs.

 

30. Pending application(s), if any, shall also stand disposed of.

 

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