Parveen Kumar vs Income Tax Officer, Ward 3(1), Gurgaon

PER VIKAS AWASTHY, JUDICIAL MEMBER:

This appeal by the assessee is directed against the order of Additional/Joint Commissioner of Income Tax (Appeals), Prayagraj [in short 'the CIT(A)'] dated 21.10.2025, for Assessment Years 2012-13.

The appeal is time barred by 85 days. The assessee has filed an application for condonation of delay supported by an affidavit citing reasons causing delay in filing of appeal. After perusal of the same, I am satisfied that delay in filing of appeal is not intentional, the delay has been caused for the reasons stated in affidavit which appears to be bonafide. Thus, delay of 85 days in filing of appeal is condoned and appeal is admitted for decision on merits.

The assessee by way of application dated 01/5/2026 has raised an additional ground of appeal challenging validity of reopening of assessment as the notice under section 148 of the Income Tax Act, of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) (herein after referred to as ‘the Act’) was never served on the assessee. The additional ground raised by the assessee reads as under:

A perusal of the additional ground of appeal shows that it is legal in nature and goes to the root of validity of reopening of assessment. The document necessary for adjudication of the legal issue raised by way additional ground is already part of record. Hence, the said additional ground is admitted for adjudication.

Shri M.R. Sahu, appearing on behalf of the assessee submits, that the notice under section 148, dated 31/3/2019 was never served on the assessee. The provisions of section 148 of the Act mandates that the Assessing Officer (AO) shall serve on the assessee a notice. Referring to the draft Notice/communication as available on the Department’s portal, at page 2 of the paper book, the ld. Counsel submits that the said communication does not contain email address of the assessee. Whereas the email address of the assessee was very much available in the PAN database of assessee and personal details of the assessee available with the Department. The ld. Counsel further referring to the assessment order dated 18/9/2019 submits that nowhere in the assessment order the AO has mentioned that the notice was served on the assessee. It only mentions that the notice under 148, dated 29/3/2019 was issued. Thus, it is evident from the records that the notice under section 148 was never served on the assessee. In the absence of service of notice, the assessee could not participate in the assessment proceedings, therefore, the reassessment proceedings were concluded ex-parte. He further contended that even after uploading of said notice on ITBA portal, no real time alert by way of SMS or email was ever received by the assessee. The ld. Counsel asserted that in the absence of service of notice under section 148, the assessment made by the AO under section 148 is bad in law, hence is liable to be quashed. In support of his submissions, the Ld. Counsel placed reliance on the decision, rendered by Hon’ble Delhi High Court in the case of Suman Jeet Agarwal versus ITO, reported as 143 taxmann.com 11. He prayed for quashing the notice as well as the assessment order, dated 18/9/2019.

Shri Manoj Kumar representing the department, vehemently supporting the reassessment proceedings and the notice prayed for dismissing additional ground raised by the assessee. The learned DR submits that the notice u/s 148 of the Act dated. 31/3/2019 was uploaded on ITBA portal. The uploading of notice on ITBA portal is a valid service of notice to the assessee.

Both sides heard. The documents and the decision on which the learned Counsel for the assessee has placed reliance during his submissions considered. The short issue for consideration in the present appeal is; Whether the notice under section 148 of the Act dated 31/3/2019 was ever served on the assessee, and the effect of non-service of said notice?

The provisions of section 148(1) of the Act (as it was applicable on the date of notice) mandates that, “Before making the assessment, reassessment or recomputation u/s 147, the Assessing Officer shall serve on the assessee a notice ……”. Thus, service of notice is sine qua non for valid assessment u/s 147 of the Act. A bare reading of the assessment order in the instant case shows that the AO has merely recorded that the notice u/s. 148 of the Act dated 29/3/2019 was issued. There appears to be some discrepancy in the date of notice u/s 148 mentioned in the assessment order and a copy of the notice placed on record. No copy of notice dated 29/3/2019 as mentioned in the assessment order is brought on record by the Department. Be that as it may, the assessment order is silent about service of notice. Further, the assessee has placed on record a screen shot of communication vide which the notice u/s 148 of the Act was sent to the assessee from the Department’s e-portal. A bare glance at the said communication shows that the e-mail address or postal address of the assessee is conspicuously missing on the said communication. Therefore, the question of service of notice without e-mail address or postal address on the communication does not arise. The assessee has categorically stated that no real time alert by way of any e-mail or SMS was ever received by the assessee when the said notice was uploaded on ITBA portal of the Department. This fact has not been controverted by the Department. Thus, the mandatory condition of service of notice u/s.148 of the Act is not satisfied.

The ld. Counsel for the assessee pointed that similar was the position in respect of notice u/s 142(1) of the Act. This explains non participation of assessee in reassessment proceedings. The assessment proceedings u/s.147 of the Act were concluded ex-parte by the AO invoking provisions of section 144 of the Act.

The Hon’ble Delhi High Court in the case of Suman Jeet Agarwal vs. ITO (supra) has held that mere generation of notice under section 148 on ITBA portal cannot in fact or in law constitute issue of notice, it is only upon due dispatch, that notice can be said to have been issued. In respect of notice uploaded on e-portal (ITBA portal) the Hon’ble High Court observed:

Thus, in facts of the case and above decision of Hon’ble Jurisdictional High Court, the re-assessment proceedings in the present case, without service of notice u/s 148 of the Act are held to be without jurisdiction, hence, quashed.

In the result, appeal of the assessee is allowed.