IN INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. No.3578/DEL/2019 Assessment Year: 2009-10 Vikrant Tiwari, vs. ITO, Ward-2(6), 117/H-1/1529, NOIDA. Pandu Nagar, Kanpur, Uttrar Pradesh. TAN/PAN: ABZPT6114G (Appellant) (Respondent) Appellant by: Shri Rakesh Garg, Adv. Respondent by: Shri Surender Pal, Sr.D.R. Date of hearing: 17 07 2019 Date of pronouncement: 27 09 2019 ORDER PER AMIT SHUKLA, JM: aforesaid appeal has been filed by assessee against impugned order dated 30.11.2018, passed by Commissioner of Income Tax (Appeals)-I, NOIDA for Assessment Year 2009-10. In grounds of appeal, assessee has challenged; firstly, validity of reopening u/s.147 r.w.s. 148 on ground that no notice u/s.148 was served upon assessee in accordance with law; secondly, approval given by Pr.CIT u/s.151 is purely mechanical; and lastly, addition made by Assessing Officer of Rs.1,95,20,000/- under head capital gain on sale of property. I.T.A. No.3758/DEL/2019 2 2. facts in brief are that assessee is individual and doctor by profession and during year under consideration had shown sale of immovable property for consideration of Rs.3,75,20,000/-. On basis of non PAN AIR information, that assessee has sold immovable property at Noida, assessee s case has been reopened u/s.147 by issuance of notice dated 16.03.2016 u/s.148. As observed by Assessing Officer in assessment order, none of notices sent to assessee including that all notices u/s.148 were complied with assessee. Accordingly, Assessing passed exparte order u/s 144 and had made addition of Rs.1,95,20,000/- by holding that sale consideration as per Section 50C of property was Rs.3,95,20,000/- and index cost of acquisition was estimated by him at Rs.2 crores. 3. Ld. CIT (A) has confirmed addition and held that income is to be taxed at Rs.1,93,00,806/- as Short Term Capital Gain and rejected all objections of service of notice and assessee s submission on merits. 4. Before us, ld. counsel for assessee, Mr. Rakesh Garg challenging validity of issuance and service of notice u/s 148, first of all drew out attention to notice u/s.148 dated 16.03.2016 (copy placed in paper book), and pointed out that it has been addressed and sent on wrong address, even when assessee was regularly assessed to tax at Kanpur with PAN jurisdiction at Kanpur. relevant notice issued u/s 148, is reproduced hereunder: I.T.A. No.3758/DEL/2019 3 Notice under Section 148 of Income Tax Act, 1961 PAN No. Office of Income tax Officer, Ward - 2(5), Noida Dated: 16.03.2016 To, VIKRANT TIWARI A-72N, SECTOR-17 NOIDA-201301 Whereas I have reason to believe that your income/ income of ..................................................................... in respect of which you are assessable chargeable to tax for assessment year 2009-10 has escaped assessment within meaning of section 147ofthe Income Tax Act, 1961. I, therefore, propose to assess/reassess income/ recompute loss/ depreciation allowance for said asstt. year and I hereby require you to deliver to me within 30 days from date of service of this notice, return in prescribed form of ........................................... .......................................... ............................. in respect of which you are assessable for said assessment year. This notice is being issued after obtaining necessary satisfaction of Pr. Commissioner of income Tax, Noida (Vinay Kumar) Income Tax Officer, Ward - 2(5), Noida Ld. Counsel then drew our attention to reasons recorded by Assessing Officer which was as under: AIR information regarding sale of immovable property amounting to Rs.96,00,000/- on 04.02.2009 has been received from CIB for examining of non PAN financial transactions. To verify transaction information has been called u/s.133(6) vide letter dated 30.10.2015. No reply has been received from assessee. I.T.A. No.3758/DEL/2019 4 In view of above facts and in absence of documentary evidence, I have reason to believe that income of Rs.96,00,000/- sale amount which is chargeable to tax, has escaped assessment for A.Y. 2009-10 within meaning of section 147 of IT Act, 1961. 5. He submitted that assessee was regularly assessed to tax in Range-4(3) at Kanpur with having PAN ABZPT6114G. This fact was duly brought before Ld. CIT (A) also vide letter filed on 23.07.2018. assessee never resided at given address at NOIDA and even address mentioned as per sale/lease deed and notice dated 01.04.2018 is also different. This is evident from fact that in notice, address mentioned is A-72N Sector 17 NOIDA-201301 , whereas in lease deed different address was mentioned, A-72, 1st floor Sector, 17 NOIDA . Thus, even if Assessing Officer had taken notice as address mentioned in lease deed which was subject matter of CIB information and reopening, then also address on which notice sent was wrong, because there is no such address A-72N. Accordingly, if jurisdictional notice u/s.148 has not been served in accordance with law then entire proceedings is void ab initio and in support he relied upon judgment of Hon ble Jurisdictional High Court in case of Commissioner Of Income Tax vs. Shital Prasad Kharag Prasad, (2006) 280 ITR 541 (Alld.) 6. On other hand, ld. DR strongly relied upon Assessing Officer and ld. CIT (A) and submitted that in I.T.A. No.3758/DEL/2019 5 case of non PAN financial transaction, address mentioned for sale deed or lease deed is considered to be address. In any case, matter can be restored back to file of Assessing Officer to deal with assessee s objection on validity of notice u/s.148. 7. After considering rival submissions and on perusal of relevant material placed on record, we find that assessee was regularly assessed to tax with Range-4(3) Kanpur with PAN ABZPT6114G. Since Assessment Year 2003-04, assessee has been regularly filing return of income and even up to Assessment Year 2018-19, income tax return has been filed with same PAN to be Ward 4(3) Kanpur and address mentioned is, 117/H-1/1529, Pandu Nagar, Kanpur. If in Income Tax records and in PAN data, assessee s address as well as jurisdiction of Assessing Officer has been categorically given, then without verifying same, how ITO Ward-2(5) NOIDA ca issue notice at wrong address. Not only that, even going by records of deeds on basis of which assessee s case was reopened that he has sold some immovable property at NOIDA, mentions address A-72, 1st Floor Sector 17, NOIDA whereas address on which notice has been sent mention A-72N, Sector-17, NOIDA, which, as brought out by ld. counsel is not address at all. Also it is admitted fact that neither notice u/s.148 has been served upon assessee by Assessing Officer nor has been sent at proper address. Thus, in I.T.A. No.3758/DEL/2019 6 absence of any valid service of notice, u/s.148, which is condition precedent for assuming jurisdiction for reopening case u/s.147, entire proceedings gets void ab initio and is to be held as null and void. Accordingly, impugned assessment order is quashed as null and void as held by Hon ble Jurisdictional High Court in Commissioner of Income Tax vs. Shital Prasad Kharag Prasad, (2006) (supra). 8. In result, appeal of assessee is allowed. Order pronounced in open Court on 27th September, 2019. Sd/- Sd/- [PRASHANT MAHARISHI] [AMIT SHUKLA] [ACCOUNTANT MEMBER] JUDICIAL MEMBER DATED: 27th September, 2019 PKK: Vikrant Tiwari v. ITO, Ward-2(6), NOIDA