Assessment Order quashed by Madras HC after notice was issued to an old email address
Fact and issue of the case
The petitioner is aggrieved by the Impugned Assessment Order dated 27.03.2022 bearing reference DIN ITBA/AST/S/147/2021-2022/1041745769(1). The Impugned Order precedes a notice under Section 148 of the Income Tax Act, 1961 dated 30.03.2021. The said notice was issued to the petitioner as the petitioner had failed to file a regular returns for the Assessment Year 2015-2016.
However, the said notice was transmitted to one of the other designated E-mail ID of the petitioner at esai@vsnl.com which was no longer in use as Bharat Sanchar Nigam Limited (hereinafter referred to as BSNL) had stopped providing IT Service from April 2019, although the petitioner also had an alternate E-mail ID at esaiandco@gmail.com.
The specific case of the petitioner is that notices that were issued subsequently were also sent to the same E-mail ID.
The learned counsel for the petitioner therefore submits that none of the communications starting from the issuance of Section 148 of the Income Tax Act, 1961 dated 30.03.2021 was received by the petitioner.
The learned counsel for the petitioner further submits that the petitioner came to know about the passing of the Impugned Order only after a notice under Section 274 read with Section 271(1)(c) of the Income Tax Act, 1961 was sent to the petitioner’s Chartered Accountant and petitioner’s alternate E-mail ID at esaiandco@gmail.com.
It is under these circumstances the petitioner has challenged the Impugned Order. It is therefore submitted that the Impugned Order is liable to be set aside.
The learned Senior Standing Counsel for the respondents on the other hand would submit that even if the notice was not sent to the petitioner’s E-mail ID, the notice and the communication were posted in the web portal and nothing precluded the petitioner from downloading the same and participate in the proceedings which ultimately culminated in the Impugned Order dated 27.03.2022.
The learned Senior Standing Counsel for the respondents submits that the petitioner has also not complied with the requirements of the decision of the Hon’ble Supreme Court in Hon’ble Supreme Court in GKN Driveshafts (India) Limited Vs. Income Tax Officer and Ors [2003] 259 ITR 19 (SC) by filing returns and filing objection to the reopening of the assessment. Hence, he submits that the present writ petition is liable to be dismissed.
Observation of the court
I have considered the arguments advanced by the learned counsel for the petitioner and the learned Senior Standing Counsel for the respondents.
Clearly the Impugned Order dated 27.03.2022 is unsustainable as the notice which preceded the Impugned Order have been sent to the E-Mail ID which was no longer in use as BSNL has stopped providing services from April 2019.
Considering the above, the Impugned Order dated 27.03.2022 is set aside and the case is remitted back to the respondents to issue a proper notice under Section 148A(b) of the Income Tax Act, 1961. In view of the above, the consequential penalty notice issued under Section 271(1)(c) of the Act on 03.08.2022 & 04.08.2022 is also stands quashed. The respondents shall pass order under Section 148A(d) of the Income Tax Act, 1961 within a period of twelve (12) months from the date of receipt of a copy of this order.
The writ petition stands allowed with the above observations and directions. No costs. Consequently, connected miscellaneous petitions are closed.
Conclusion
In the result, appeal of the assessee is allowed and ruled in favour of the assessee
