HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Income Tax Appeal No. 37 / 2009 Alokik Kumar Jain R/o Mangal Niwas, Vijaypada, Rampura, Kota Appellant Versus 1. Income Tax Appellate Tribunal, Jaipur 2. Commissioner of Income Tax (Appeals), Kota 3. Income Tax Officer, Ward-I (i) Kota Respondent Connected With D.B. Income Tax Appeal No. 131 / 2009 Rajendra Kumar Jain, R/o Mangal Niwas, Vijaypada, Rampura, Kota Appellant Versus 1. Income Tax Appellate Tribunal, Jaipur Bench, SMC Jaipur 2. Commissioner of Income Tax (Appeals), Kota 3. Income Tax Officer, Ward-I (i) Kota Respondent D.B. Income Tax Appeal No. 414 / 2009 Alokik Kumar Jain R/o Mangal Niwas, Vijaypada, Rampura, Kota Appellant Versus 1. Income Tax Appellate Tribunal, Jaipur Bench, Rajasthan Chamber Bhawan, Jaipur 2. Commissioner of Income Tax (Appeals), Near CAD Circle Kota 3. Income Tax Officer, Ward-I (I), Near CAD Circle, Kota Respondent For Appellant(s) : Mr. Anant Kasliwal For Respondent(s) : Ms. Parinitoo Jain (2 of 7) [ ITA-37/2009] HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE INDERJEET SINGH Judgment 01/08/2017 In these appeals common questions of law and facts are involved, hence, they are decided by this common judgment. 1. By way of these appeals, appellant has assailed judgment and order of Tribunal whereby Tribunal has dismissed appeals preferred by assessee confirming order of AO. 2. This court while admitting matter framed following questions of law:- DBITA No. 37/2009 i) Whether ITAT has erred in not having considered issue of non-service of notice u/s 148 within prescribed time frame despite this fact emerging from assessment record? ii) Whether ITAT was justified in law in having disallowed claim for loss suffered by Appellant-assessee in trading of Mustard undertaken through M/s Hari Agro Mills Private Ltd., Jamshedpur despite same having been duly confirmed by M/s Hari Agro Mills Private Ltd., Jamshedpur.? DBITA No. 131/2009, DBITA No. 414/2009 i) Whether ld. ITAT has erred in having taken view that issue relating to validity of service of notice u/s 148 of Act, 1961 within prescribed time frame is no more open to appellant in view of its order dated 21.12.2004. ii) Whether ITAT has erred in not having considered issue of non-service of notice u/s 148 within prescribed time frame despite this fact emerging from assessment record.? (3 of 7) [ ITA-37/2009] 3. Counsel for appellant contended that in original order which came to be passed it has been admitted on page 23 that notice was served on Radhe Shyam Nagar on 14th March, 2000 and that date was not known to assessee. same fact was also admitted by CIT(A) observing as under:- 2.3. submissions that notice was not served is also not acceptable because it is admitted fact that notice was served on business premises of assessee and therefore it is not acceptable that it was not in knowledge of appellant. appellant has admittedly attended office of AO, subsequently and within financial year i.e. before 31.3.2000 and this was admitted to be in response to his knowledge that notice was issued in his name. 4. However, CIT(A) has dismissed appeal holding that after first round of litigation, assessee has gone in appeal wherein it has been observed as under:- I have considered argument of appellant and perused assessment order as well as facts available on record. It is seen that this issue came up for consideration before erstwhile CIT(A), Rajasthan-II. She has considered issue and has observed as under:- 2.2 I have considered facts of case and submissions made, and don t find arguments given to be acceptable for following reasons. appellant has not filed any return of income for relevant assessment year up to finalization of assessment by AO. AO has as per records, information that appellant was in receipt of substantial income above taxable income being determined share of business income from firms in which appellant was partner. Such determined share of appellant form firms was substantially above limit prescribed for taking action under section 148 within time limit up to date of issuance of notice under section 148 in case of appellant for this assessment year. Therefore there is no justification in appellant s submissions that (4 of 7) [ ITA-37/2009] action under section 147 was bared by limitation and therefore proceedings are void abinitio. 2.3 Submissions that notice was not served is also not acceptable because it is admitted fact that notice was served on business premises of assessee and therefore it is not acceptable that it was not in knowledge of appellant. appellant has admittedly attended office of AO subsequently and within financial year i.e. before 31.03.2000 and this was admitted to be in response to his knowledge that notice was issued in his name. There is also no evidence with appellant that income declared by him for year was correct income because return filed at Rs.12,200/- in assessment year 1990-91 and Rs.19,980/- for assessment year 1991-92 was much lower than determined share from firm which is very much higher. It is not case of appellant that AO is incorrect in stating that he was partner in firms as indicated in assessment order. Accordingly therefore, computation of Income is justified and same is confirmed. Besides various facts mentioned by erstwhile CIT(A), It is seen that notice u/s 142(1) was issued on 13.03.2000, which was returnable on 21.03.2000. This notice was admittedly received by Shri Radheshyam Nagar. Admittedly, appellant has attended in response to notice u/s 142(1), though belatedly before AO and therefore, he has also filed return of income. These facts indicate that appellant was in knowledge of notice u/s 147/148, which was issued on 27.03.1998. In view of these facts and circumstances, objection of appellant in this regard is rejected and ground taken by appellant failed. 5. However, same contention was raised by assessee before Tribunal in present appeal where Tribunal after considering case has held that it is not open for assessee to raise same contention. (5 of 7) [ ITA-37/2009] 6. Counsel for respondent has supported to order and contended that in view of remand order where department has in previous litigation agreed for remand to consider that notice is served on assessee. Therefore, after considering case no error has been committed by Tribunal and it is purely question appreciation of facts. In that view of matter, no question of law arises. 7. We have heard counsel for both sides. 8. Counsel for appellant has relied upon two decisions of Delhi High Court in case of Commissioner of Income Tax vs. Chetan Gupta reported in [2016] 382 ITR 613 (Delhi) wherein it has been held as under:- Held accordingly, that no attempt had been made by Department to serve assessee at address provided by him. All notices were addressed to him at another address C/o. Kiran Cinema. Therefore, this was not case where attempt was made by Department to serve assessee at his known address, and upon not finding him there Department learnt of address where he would be found. Merely because other notices sent to assessee group were received by employees of Kiran Cinema it did not automatically lead to inference that assessee s place of business was also Kiran Cinema. In any event, there could not be inference that V was duly empowered by assessee to receive notices on his behalf. In very first notice dated March 28, 2008 endorsement made by V Showed him describing himself as accountant, Kiran Cinema and nothing more. assessee made specific request to Assistant Commissioner that copy of notice under section 148 along with basis and reason of opening case under section 148 be provided to them to enable him to comply with it. However, Assistant Commissioner in his reply of same date continued to show addresses of assessee as C/o Kiran Cinema and insisted that (6 of 7) [ ITA-37/2009] notice had been validly served on V, accountant of Kiran Cinema (who also received other notices of concerned group concerns). Section 292BB is prospective. In any event assessee in present case, having raised objection regarding failure by Department to effect service of notice upon him, main part of section 292BB was not attracted. Since no proper service of notice had been effected under section 148(1) of Act on assessee, reassessment proceedings were liable to be quashed. 9. He has also relied upon decision of Jammu Kashmir High Court in case of Dina Nath vs. Commissioner of Income Tax reported in (1993) 204 ITR 667 wherein it has been held as under:- admitted facts of case are : that, on last day when assessment was to be made, notice was served upon one Som Nath, who is neither member of family of assessee nor his duly authorised agent having specifically been authorised to accept notice on behalf of assessee. It is also established that Som Nath had been accepting notice earlier for and on behalf of assessee and prosecuting cases on his behalf before Income Tax authorities. In order to appreciate rival contentions of learned counsel for parties, reference is required to be made to provisions of Sub-section (2) of Section 143 of Act, which provides : "143. Assessment.--. . . . (2) Where return has been made under Section 139, or in response to notice under Sub-section (1) of Section 142, Assessing Officer shall, if he considers it necessary or expedient to ensure that assessee has not understated income or has not computed excessive loss or has not underpaid tax in any manner, serve on assessee notice requiring him, on date to be specified therein, either to attend his office or to produce, or cause to be produced there, any evidence on which assessee may rely in support of return : (7 of 7) [ ITA-37/2009] Provided that no notice under this sub-section shall be served on assessee after expiry of financial year in which return is furnished or expiry of six months from end of month in which return is furnished, whichever is later." 10. Having considered order, first contention that notice was not served, is not open after remand order. In our considered opinion, view taken by Tribunal is just and proper. 11. question is required to be answered in favour of department against assessee. 12. appeals stand dismissed. (INDERJEET SINGH),J. (K.S. JHAVERI),J. A.Sharma/7-9 Alokik Kumar Jain v. Income-tax Appellate Tribunal, Jaipur/ Commissioner of Income-tax (Appeals), Kota/ Income-tax Officer, Ward-I (i) Kota