# Grs Hotel Pvt. Ltd. Lko v. Union of India & Ors

- **Citation:** (2024) 2 ILRA 618
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-27
- **Case number:** THE HON'BLE OM PRAKASH SHUKLA J. Writ Tax No. 228 of 2023
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/grs-hotel-pvt-ltd-lko-v-union-of-india-ors-51449
- **Pages:** 11

## Headnote

Income Tax - Income Tax Act, 1961 -
Sections 148A & 144B - Reassessment
Proceedings - Validity of Notice Service -
Petitioner challenged order dated 26.03.2023
under Section 148A(d) and notice dated
29.03.2023 under Section 148 for Assessment
Year 2019-20, alleging non-service of notice
under Section 148A(b) on registered email ID -
Held, notice sent to outdated email ID
(gmkca1993@gmail.com) instead of current
registered email ID (taxmohit56@gmail.com),
updated since 2020-21, invalidates service -
Section 144B mandates service on registered
email as per defined alternatives, with residual
clause (vi) applicable only if primary options fail
- Valid service of notice under Section 148A(b)
is a jurisdictional requirement, non-compliance
vitiates subsequent proceedings - Commissioner
of Income Tax Vs Chetan Gupta, Chitra Supekar
Vs Income Tax Officer, Lok Developers Vs
Deputy Commissioner of Income Tax, and Jyoti
Narang Vs Income Tax Officer followed -
2 All. Grs Hotel Pvt. Ltd. Lko. Vs. Union of India & Ors.
619
Impugned order and notice quashed, matter
remanded for reply to Section 148A(b) notice
within four weeks. (Para 12-27)

Writ petition partly allowed.

List of Cases Cited:

## Text

618 INDIAN LAW REPORTS ALLAHABAD SERIES
against the charges levelled against him. A
denial of the Inquiry Officer's report before
the disciplinary authority takes its decision
on the charges is a denial of reasonable
opportunity to the employee to prove his
innocence and is a breach of the principles
of natural justice. (Managing Director,
ECIL v. B. Karunakar and Ors. (1993) 4
SCC 727)

17. Learned counsel appearing for the
Principal of the Institution as well as
Committee of Management, Mr. Tiwari has
sought to refer the order by annexing the
photocopy of the envelope which showed
that it carried the show cause notice and the
enquiry report but neither the show cause
notice has been annexed alongwith counter
affidavit, nor the order impugned refers to
any such service of enquiry report seeking
explanation.

18. The law is also well settled that
the second show cause notice is a must in
the matter of disciplinary proceedings and
departmental enquiry in view of the
judgment of the constitution Bench of
Supreme Court in the case of Managing
Director, ECIL (Supra).

19. In view of the above exposition of
law and discussion held, the order passed
by
the
Principal
of
the
Institution
dispensing with the services of the
petitioner on the basis of the Enquiry
Report is held unsustainable. Since I
have already held the enquiry report
also to be unsustainable both the
enquiry report dated 29.06.2013 as well
as the order passed by the Principal of
the Institution dated 23.10.2013 are
hereby quashed.

20. Writ petition succeeds and is
allowed.

21. Consequences to follow.

22. Respondents will be at liberty to
proceed afresh in accordance with law.
----------
(2024) 2 ILRA 618
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.02.2024

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.
THE HON'BLE OM PRAKASH SHUKLA J.

Writ Tax No. 228 of 2023

Grs Hotel Pvt. Ltd. Lko. ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Manish Misra, Dileep Pandey, Gaurav
Upadhyay

Counsel for the Respondents:
A.S.G.I., Kushagra Dikshit

Income Tax - Income Tax Act, 1961 -
Sections 148A & 144B - Reassessment
Proceedings - Validity of Notice Service -
Petitioner challenged order dated 26.03.2023
under Section 148A(d) and notice dated
29.03.2023 under Section 148 for Assessment
Year 2019-20, alleging non-service of notice
under Section 148A(b) on registered email ID -
Held, notice sent to outdated email ID
(gmkca1993@gmail.com) instead of current
registered email ID (taxmohit56@gmail.com),
updated since 2020-21, invalidates service -
Section 144B mandates service on registered
email as per defined alternatives, with residual
clause (vi) applicable only if primary options fail
- Valid service of notice under Section 148A(b)
is a jurisdictional requirement, non-compliance
vitiates subsequent proceedings - Commissioner
of Income Tax Vs Chetan Gupta, Chitra Supekar
Vs Income Tax Officer, Lok Developers Vs
Deputy Commissioner of Income Tax, and Jyoti
Narang Vs Income Tax Officer followed -
2 All. Grs Hotel Pvt. Ltd. Lko. Vs. Union of India & Ors.
619
Impugned order and notice quashed, matter
remanded for reply to Section 148A(b) notice
within four weeks. (Para 12-27)

Writ petition partly allowed.

List of Cases Cited:

1. Commissioner of Income Tax (Central-1) Vs
Chetan Gupta; 382 ITR 613

2. Chitra Supekar Vs Income Tax Officer; Writ
Petition No. 15580 of 2022

3. Lok Developers Vs Deputy Commissioner of
Income Tax; Writ Petition No. 1983/2022

4. Jyoti Narang Vs Income Tax Officer; Writ
Petition (C) No. 9289/2023

5. Commissioner of Income Tax Vs Eshaan
Holding (P) Ltd.; (Delhi High Court, not fully
cited in judgment)

6. Commissioner of Income Tax Vs Avtar Singh;
(Punjab and Haryana High Court, not fully cited
in judgment)

(Delivered by Hon'ble Om Prakash Shukla,
J.)

(1) The petitioner challenges the
correctness of the order dated 26th March,
2023 passed by the Assessing Authority
under Section 148-A (d) of the Income Tax
Act, 1961 (hereinafter referred to as 'Act,
1961') for the Assessment Year 2019-20
and the consequential notice dated 29th
March, 2023 issued under Section 148 of
the Act, 1961 for the Assessment Year
2019-20
as
also
the
consequential
proceedings undertaken subsequent thereto.

(2) Shorn of unnecessary details, the
brief facts, which led to the filing of this
writ petition, are that the petitioner, a
private limited company bearing PAN No.
AAFCG0658J, is engaged in the business
of developing and Managing hotels, motels,
resorts, restaurants, cafes and other similar
activities.

(3) It is the case of the petitioner that
for the purpose to achieve its business goal,
the petitioner's company has entered into
an
agreement
to
sale/lease
dated
18.10.2011 with one Jayveer Singh in
respect of his property, namely, 'Deorhi
Darwaza, Purna Mahal' situated at Khasra
No. 1533 in Village Maharaj Nagar,
District Mahoba, U.P. (hereinafter referred
to as the 'property') in distress sale. By the
aforesaid agreement for sale/lease deed
dated 18.10.2011, the petitioner has also
been given possession of the said property
from the year 2011-12 onward. The
petitioner has also paid the amount of the
property as per the agreement for sale/lease
deed to the owner of the property.
According to the petitioner, the said
agreement
for
sale/lease
deed
dated
18.10.2011 was exempted from payment of
stamp duty in terms of U.P. Tax and
Registration Adhiniyam, 2013 and as per
Tourism Policy, 2017 of the State of U.P.
However, ultimately, after receiving sale
consideration of the said property, the
owners of the said property had executed
sale deed of the property in favour of the
petitioner on 16.04.2018 i.e. relevant for
the
Assessment
Year
2019-20.
This
execution of sale deed dated 16.04.2018
and ownership of the said property are
pending adjudication in WPIL No. 418 of
2022 : Mool Chand Anuragi and another
Vs. State of U.P. and others, before this
Court.

(4) Noticing the transaction made
in respect of purchase of the said property
in the Assessment Year 2019-20, a notice
under Section 148A(b) dated 07.03.2023
had been issued by the income tax
department to the petitioner on the ground
620 INDIAN LAW REPORTS ALLAHABAD SERIES
that there had been a heavy financial
transaction during the said assessment year
for the sale/purchase of a property
amounting to Rs. 6,31,10,000/- as per
section 56(2)(x) of the Income Tax Act.

(5) It is the case of the petitioner
that for the first time, they received a notice
dated 12.10.2023 under Section 142 (1) of
the Act, 1961 for the Assessment Year
2019-20, which was sent to the petitioner
on its previous mail address registered on
the portal of the Income Tax Department,
namely, gmkca1993@gmail.com, which
according to the petitioner, is no more
registered for the PAN No. AAFCG0658J
of the Company. According to him, since
the aforesaid notice dated 12.10.2023 was
also sent as a copy to the petitioner's
registered email address on the portal of the
Income
Tax
Department
i.e.
taxmohit56@gmail.com, which according
to the petitioner, is presently his registered
email I.D. with registered phone no. is
8874271081, on the portal of the Income
Tax Department as well as its PAN, he
came to learn about the said proceedings. It
is also pleaded that the petitioner had been
using the present registered email I.D. and
registered phone, for filing of their incometax return for the last three years.

(6) According to the petitioner, the
petitioner's company has changed its
Chartered Accountant w.e.f. 01.04.2019 as
per Chartered Accountant Act, 1949 and
Companies Act, 2013 and engaged the new
Chartered
Accountant
for
company.
Thereafter, the New Charted Accountant
has updated the portal of the income tax
department with its new mail ID as well as
phone number in the year 2019 itself and
started using the same since Assessment
Year 2020-21 for filing return etc. as is
evident from the acknowledgment for the
year 2020-21, 2021-22 and 2022-23 etc. It
has been further stated that as per
Explanation (b) of Section 139 (1) of the
Act,
1961,
'Acknowledgment'
is
recognized as 'intimation' from the
department, hence the 'acknowledgment'
is automated/ computer generated and
does not contain any such secondary mail
on record as claimed by the department.

(7) Thus, it has been contended by
the petitioner that on coming into the
notice of the aforesaid proceeding with
respect to some proceeding for the
assessment year 2019-20, he immediately
contacted
his
earlier
Chartered
Accountant, who was working with the
petitioner's
company
till
2019
and
requested him to scan through his mail ID
gmkca1993@gmail.com and it was only
after confronting him about any notice or
information from income-tax department
with respect to the petitioner, the previous
Chartered
Accountant
informed
the
petitioner about the notice under Section
148A and subsequent notice under Section
133 of the Act, 1961. The petitioner, thus,
have submitted that although these notices
were received on the earlier registered
mail but it was not informed to the
petitioner as the previous CA was not
having any professional or personal
relation with the Company. According to
the petitioner, for the first time, a notice
under Section 148A (d) of the Act, 1961
came into the notice of the petitioner only
after the final order under section 148 of
the Act, 1961 along with the notice under
Section 148 had already been issued.
Further, it was only after the receipt of
notice under Section 142 by the petitioner
on 12.102023, now the petitioner could
find out in the hindsight about the issuance
of notices under Section 148A of the
Income tax Act to them.
2 All. Grs Hotel Pvt. Ltd. Lko. Vs. Union of India & Ors.
621

(8) In the aforesaid background, it has
been stated by the petitioner that after
getting information with respect to reassessment proceedings initiated against
the petitioner under Sections 147/148 of the
Act, 1961, the petitioner also came to know
a notice under Section 148A(b) dated
07.03.2023 was issued to the petitioner,
suggesting that income chargeable to tax
for the assessment year 2019-20 had
escaped assessment within the meaning of
Section 147 of the Act, 1961 and called
upon the petitioner to show cause as to why
notice under Section 148 of the Act, 1961
be not issued. The basis for reopening was
the information, which reads as under:-

"As
per
information
in
department data base, you have made
following financial transactions during the
relevant financial year 2018-19;

1. Sale/Purchase of property-
s.6,31,10,000/- (56(2)(x).

The above information is flagged
in 'Insight Portal' under High Risk
CRIU/VRU information category in your
case for the relevant assessment year in
accordance with the risk management
strategy formulated by the CBDT, New
Delhi."

(9) According to the petitioner, since
the aforesaid notice dated 07.03.2023 was
not received by the petitioner because of
the mistake committed by the department,
the petitioner was not able to file any reply
to the same and unfortunately in the
absence of any reply from the side of the
petitioner, as per procedure, the department
of Income Tax has passed an order under
clause (d) of Section 148A of the Act, 1961
on 26.03.2023, stating that the same has
been passed after getting approval of the
specified
authority
on
25.03.2023.
According to the petitioner, this order dated
26.03.2023 indicates that the email of the
assessee/petitioner
is
gmkca1996@gmail.com,
which
is
admittedly the previous email I.D. of the
petitioner registered on the portal of the
income tax department, although it is also a
matter of records that presently the
registered email ID of the petitioner on the
portal of the income tax department is
taxmohit56@gmail.com. Consequently, a
notice under Section 148 of the Act, 1961
has also been issued on 29.03.2023, by
which the Assessing Officer has proposed
to assess or reassess the income for the
assessment year 2019-20 and required the
petitioner to file his return in the prescribed
form.

(10) Feeling aggrieved by the
aforesaid order dated 26.03.2023 and notice
dated 29.03.2023, the petitioner has filed
the instant writ petition before this Court.

(11) Heard Shri Manish Mishra,
learned Counsel representing the petitioner
and
Shri
Kushagra
Dikshit,
learned
Counsel representing the respondents no.2
and 3.

(12) Learned Counsel representing the
petitioner has submitted that the Finance
Act, 2021 has inserted a new chapter of
enquiry and opportunity of hearing in
reassessment proceedings and as such,
Section 148A of the Act, 1961 has been
inserted with effect from 01.04.2021. This
section has been introduced with the
legislative intent to provide opportunity of
hearing to the assessee before issuing
notice for re-assessment under section 148
of the Act. Clause (b) of Section 148 of the
Act provides the right of hearing to the
assessee by serving him a show cause
notice. Thereafter, the Clause (c) of Section
148 of the Act, 1961 mandates the
622 INDIAN LAW REPORTS ALLAHABAD SERIES
assessing authority for consideration of
reply submitted by the assessee and
thereafter the final order/ decision with
respect to the finding that whether the case
in hand is fit case for issuing notice under
section 148 or not be passed is provided
under clause (d) of Section 148 of the Act,
1961. In order to complete this entire
procedure, the service of notice/procedure
for service is provided under Section 144B
of the Act, 1961. According to the learned
Counsel, Section 144B of the Act, 1961
was also inserted by the Taxation and Other
Laws (Relaxation and Amendment of
Certain
Provisions)
Act
2020
w.e.f.
1.4.2021. This section provides that after
1.4.2021, all the assessment, reassessment
or re-computation under the Act, 1961 shall
be made in a faceless manner. The
amended provisions entail that every notice
or
order
or
any
other
electronic
communication shall be delivered to the
addressee, being the assesse, by way of (i)
placing an authenticated copy thereof in the
assessee's
registered
account;
or (b)
sending an authenticated copy thereof to
the registered email address of the assesse
or his authorized representative; or (c)
uploading an authenticated copy on the
assessee's mobile App, and followed by a
real time alert.. Further, the Explanation (t)
provided that the registered email address
means the email address at which an
electronic communication may be delivered
or transmitted to the addressee. Explanation
(r) defines the words 'real-time alert'
means any communication sent to the
assessee, by way of short messaging
service on his registered mobile number or
by way of an email at his registered email
address so as to alert him regarding
delivery of an electronic communication.
Further the Explanation (u) defines the
registered mobile number, which means the
mobile number of the assessee or his
authorised representative appearing in the
user profile of the electronic filing account
registered by the assessee in designated
portal.

(13) Pointing out the aforesaid
provisions of law, learned Counsel has
submitted that an elaborate and rigorous
process has been provided under the law
for service of notice to the assesse and in
case the said notice is not legally served on
the
assessee, the
whole
process
of
assessment falls flat. According to him, if
initial action is not in consonance with law,
subsequent proceedings would not satisfy
the same. The legal maxim sublato
fundamento cadit opus, provided that in
case the foundation is removed, the
superstructure falls. In the present case, the
impugned order under Section 148A(d) and
the notice under Section 148 of the Act,
1961 has been passed on the premise that
notice has been sent on the registered mail
ID of the petitioner but he failed to respond
the same. While it is evident from record
that the notice has never been served on the
registered e-mail address of the petitioner.
Thus the order impugned has been passed
on wrong foundation and, accordingly,
having no value in the eyes of law. Thus, it
has been prayed that the order dated
26.03.2023
passed
by
the
assessing
authority under Section 148A(d) of the Act,
1961 for the Assessment Year 2019-20 and
all the consequential notices including the
notice dated 29.03.2023 may be quashed.

(14) Per contra, learned Counsel for
the respondent No.2 and 3, explaining the
elaborate provisions for issuance of notice
for re-opening of assessment, has argued
that
substantial
safe-guard
has
been
provided under Section 148A of the Act,
1961 itself for service of notice to an
assesse, which was duly followed in the
2 All. Grs Hotel Pvt. Ltd. Lko. Vs. Union of India & Ors.
623
present case. It has been contended by the
learned counsel that notice under Section
148A(b) has been issued to the petitioner
on
07.03.2023
by
the
jurisdictional
assessing officer by uploading the same on
the income tax e-filing portal of the
petitioner and also intimated on the
registered email id available in the database
of
the
department,
which
is
gmkca1993@gmail.com,
through
an
automated system and which email is still
reflecting as the email id of the assesse on
the e-filing portal. Thus, it has been
submitted that, since no response was
submitted within the time as provided in
the notice under Section 148A (b) of the
Act, 1961, there was nothing wrong on the
part of the Assessing Officer to pass an
order under Section 148A(d) of the Act,
1961 dated 26.03.2023, which again was
served in the same manner, by uploading
on the income tax e-filing portal as well as
through an automated system to the
registered email id as available in the
database of the department.

(15) The learned Counsel has
emphatically stressed on the point that the
order under Section 148A(d) of the Act,
1961 dated 26.03.2023 was also uploaded
on the Income Tax Portal of the petitioner,
which was also reflected in the eproceeding column on the Income tax
portal of the petitioner under heading- 'Last
used
email
ID
by
current
user-
gmkca1993@gmail.com' and, as such it
has been argued that the petitioner was duly
aware of the notices and re-assessment
proceedings.

(16) It has also been contended by
the learned counsel appearing for the
respondents No.2 and 3 that although the
petitioner appeared to have added an
additional
email
id-
taxmohit56@gmail.com on the income Tax
Portal, but has till date not deleted the old
email id-gmkca1993@gmail.com as the
same is still reflecting on the portal and at
no point of time, the petitioner had
informed the I.T. department regarding the
change of email id. Thus, it has been
pointed out that since the notice and the
consequent order were duly uploaded on
the given Email Id on the Income Tax
Portal though an automated system, there
was no error on the part of the Assessing
Officer in serving the notice or the order
under Section 148A(b) and 148A(d) of the
Act, 1961 respectively. As an alternate
argument,
the
learned
Counsel
has
submitted
that
the
reassessment
proceedings under Section 148 of the Act,
1961 have already been initiated and the
petitioner had been duly participating in the
said proceedings and has infact also field
his reply to the notice dated 12.10.2023
issued under Section 142 (1) of the Act,
1961 on 04.11.2023 and according to him,
the grounds of non-service of the impugned
notice/orders can be very well taken by the
petitioner in the said proceedings and the
said issue can also be considered by the
assessing officer at the time of passing the
Assessment Order.

(17) In rejoinder, the learned
counsel for the petitioner has denied the
contention of the department and has
submitted that at the time of issuance of
notice on 07/03/2023, the e-mail ID
taxmohit56@gmail.com was the only mail
registered
on
the
database
of
the
department against the PAN number of the
petitioner company. The email sent by the
Income Tax Business Application from the
mail ID of ITO, Lucknow has been sent to
the earlier mail ID gmkca1993@gmail.com
and the concerned officer never tried to
find out what was the actual email
624 INDIAN LAW REPORTS ALLAHABAD SERIES
registered on the online portal against the
PAN of the petitioner. According to him,
inspite of the updation of the web portal of
the IT Department from the Assessment
Year 2020-21 till date, if the correct
information has not been picked by the
jurisdictional Assessing Officer from the
profile account of the petitioner, then it was
a mistake committed by the respondent
No.2 and 3 and the petitioner cannot be
faulted.

(18) Having scrutinized the rival
submission of the parties and going through
the record available before this Court in the
instant writ petition, this Court is of the
view that there is no denial of the fact that
there exists two email ID of the petitionerCompany. The petitioner termed email ID:
gmkca1993@gmail.com, as the earlier
email ID having been used till 2019 and
email ID: taxmohit56@gmail.com, has
been termed as the present Email ID having
been in operational after the year 2019.
Although, the respondents have not denied
the email ID: taxmohit56@gmail.com,
however, they have contended that email
ID: gmkca1993@gmail.com continues to
be the registered email ID of the petitioner.
The respondents have also not denied the
fact that the notice under Section 148A (b)
of the Act, 1961 dated 07.03.2023 and the
consequential order dated 148A (d) of
the Act, 1961 dated 26.03.2023 has
been
sent
to
the
email
ID:
gmkca1993@gmail.com. Therefore, the
issue now boils down to as to what is
the registered e-mail address of the
petitioner as on 07.03.2023 i.e the date
of issuance of notice under Section
148A (b) of the Act, 1961. Having said
so, that immediately brings this Court
to explanation (t) of Section 144B of
the Act, 1961 which defines registered
email address as follows :-

"registered
e-mail
address"
means the e-mail address at which an
electronic communication may be delivered
or transmitted to the addressee, including-

(i) the email address available in
the electronic filing account of the
addressee registered in designated portal; or

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

(iii) the e-mail address available
in
the
Permanent
Account
Number
database relating to the addressee; or

(iv) in the case of addressee being
an individual who possesses the Aadhaar
number, the e-mail address of addressee
available in the database of Unique
Identification Authority of India; or

(v) in the case of addressee being
a company, the e-mail address of the
company as available on the official
website of Ministry of Corporate Affairs;
or

(vi) any e-mail address made
available by the assesse to the income-tax
authority or any person authorised by such
authority"

(19) From the aforesaid definition of
registered e-mail address, this Court finds
that there are several alternatives provided
for considering any email address as a
"registered e-mail address". It has been
argued by the learned counsel for the
respondents
that
the
notice
under
Section148A(b) of the Act, 1961 had been
sent to the petitioner on the available email
ID on the portal of the Income Tax
department, but the question is as to
whether the said available email ID can be
construed to be a registered email ID in
view of the explanation (t) to Section 144B
of the Act, 1961. Although it has been
contended by the learned counsel for the
respondents that the said e-mail address
2 All. Grs Hotel Pvt. Ltd. Lko. Vs. Union of India & Ors.
625
was the email ID made available by the
assessee, so as to satisfy the sub-clause (vi)
of the aforesaid definition, however, this
Court is unable to countenance as to why
the respondents without resorting to the
various sub-clauses from (i) to (v) has
pressed sub-clause (vi) into action. No
doubt, all the sub-clauses are alternative to
each other and each of them indicate
independent mechanism for determination
of the registered email address, but the
Court cannot be oblivious to the fact that
sub-clause (vi) has been inserted by the
legislature as a residual provision to
determine the registered email address,
when the registered email address of the
assessee cannot be determined by the
mechanism as provided from sub-clauses
(i) to (v). Thus, if the registered email
address
of
the
assessee
cannot
be
determined from (a) e-filing account of the
addressee registered in designated portal or
(b) from the last income tax return
furnished, or (c) from the permanent
Account number data base relating to the
addressee or (d) from the official website of
the Ministry of corporate affairs, etc. then
only the authority may resort to any e-mail
address made available by the assessee.
Further, the word "available" is of
significance as it records a positive action
on the part of the assessee in making
available the e-mail ID, so that the same
may be construed as the registered email ID
of the assessee.

(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
626 INDIAN LAW REPORTS ALLAHABAD SERIES
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 reported as
"Commissioner of Income Tax (Central1) Vs Chetan Gupta": 382 ITR 613, interalia 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
Chitra Supekar Versus Income Tax
Officer, (Writ Petition No. 15580 of 2022),
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
vs 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 vs
Avtar Singh 6 which held that service of
2 All. Grs Hotel Pvt. Ltd. Lko. Vs. Union of India & Ors.
627
notice under section 148 is a condition
precedent for making reassessment or recomputation 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 i.e. 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 i.e. for want of service
and consequently, for non-compliance with
the provisions of the Act."

(24) Further in the judgment
passed in Lok Developers Vs Deputy
Commissioner of Income Tax Circle (Writ
Petition No 1983/2022), wherein the issue
before the Bombay High Court was as to
whether subsequent proceedings initiated
by the revenue authorities for noncompliance 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/s 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 Vs Income tax
Officer, (Writ Petition (C) No. 9289/2023)
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.

(26) For all the aforesaid reasons, the
order dated 26th March, 2023 passed by the
Assessing Authority under Section 148-A
(d) of the Act, 1961 for the Assessment
Year 2019-20 and the consequential notice
628 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 29th March, 2023 issued under
Section 148 of the Act, 1961 for the
Assessment Year 2019-20 as also the
consequential
proceedings
undertaken
subsequent thereto cannot be sustained in
the eyes of law and, as such, the same are
quashed and the parties are relegated to the
stage of reply of notice under Section 148A(b)
of the Act dated 07.03.2023.

(27) Needless to say, the petitionercompany shall have an opportunity to file a
reply to the said show cause notice dated
07.03.2023 within a period of four weeks from
today and for that purposes, the Assessing
Officer shall provide necessary opportunity to
the petitioner for uploading the response of the
petitioner on the designated portal and
thereafter the Assessing officer shall pass an
order in terms of section 148A(d) of the Act.

(28) In view thereof, the writ petition
is partly allowed, subject to the aforesaid
terms and conditions. There shall be no
order as to cost.
----------
(2024) 2 ILRA 628
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.02.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Second Appeal No. 73 of 1993

Hublal ...Appellant
Versus
Kalloo & Ors. ...Respondents

Counsel for the Appellant:
B.K. Saxena

Counsel for the Respondents:
U.P. Zamindari Abolition & Land Reforms
Act, 1950 - Section 168-A The Allahabad
High Court held that Section 168-A of the Act,
1950, which prohibits transfer of fragmented
land in consolidated areas, does not apply to
agreements to sell, as they do not transfer title.
The appellate court erred in dismissing the suit
for specific performance by applying Section
168-A to the agreement dated 22.07.1986.
(Paras 6, 9, 12)

Effect of Deletion of Section 168-A Section
168-A was deleted by U.P. Act No. 27 of
2004, removing the embargo on executing sale
deeds for fragmented lan The court ruled that
the law prevalent at the time of decision applies,
allowing execution of the sale deed postdeletion without legal impediment, even for
agreements predating the amendment. (Paras
9, 11-12)

Specific Performance and Subsequent Vendee
The court upheld the appellant's right to specific
performance of the agreement to sell dated
22.07.1986, directing both the original vendor
(respondent no. 1) and subsequent vendee
(respondent no. 2) to execute the sale deed, as
established in precedents like Lala Durga Prasad
Vs Lal Deep Chand (1953) and Rathnavathi Vs
Kavita Ganashamdas (2015). (Paras 7, 13)

. Reversal of Appellate Court's Judgment The
first
appellate
court's
judgment
dated
13.10.1992, which set aside the trial court's
decree for specific performance, was held
erroneous and set aside. The trial court's decree
dated
24.12.1991
was
restored,
directing
execution of the sale deed within one month,
failing which the appellant could execute it
through the Civil Judge. (Para 13)

Cases Cited:

1. Ram Pratap Vs Gulab, Second Appeal No. 352
of 1993 (All HC, 25.07.2013) (Para 6)

2. Lala Durga Prasad Vs Lal Deep Chand, (1953)
2 SCC 509 (Para 7)

3. R. Chandiok Vs Chuni Lal Sabharwal, 1970
(3) SCC 140 (Para 7)