Point of Law: Issue of notice where income has escaped assessment (1) Before making the assessment, reassessment or re-computation under Section 147, the Income tax Officer shall serve on the Assessee a notice containing all or any of the requirements which may be included in a notice under subsection (2) of Section 139; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that subsection

JUDGMENT :

J.B.PARDIWALA, J.

1 By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:

“(A) Issue a writ of certiorari and/or a writ of mandamus and/or any other writ direction or order to quash and set aside the impugned objection rejection order dated 1.11.2018 annexed hereto at Annexure G the proceedings initiated u/s 147 on the strength of notice u/s 148 dated 30.3.2018, unilaterally said by the respondent to have been issued and served on the petitioner though the same is never received by the petitioner.

(B) Issue a writ of certiorari and/or a writ of mandamus and/or any other writ direction or order to quash and set aside all further subsequent notices and summons including all proceedings in continuation and in consonance with the notice u/s 148 dated 30.3.2018 said to have been issued and served by the respondent upon the petitioner, though the same is never received by the petitioner.

(C) Pending admission, hearing and disposal of this petition, adinterim relief be granted and the respondent be ordered to restrain from taking any other steps in this regard including ex-parte order or implementation of the preliminary order dated 1.11.2018 at Annexure G and further notices issued for purpose of reassessment and all further subsequent notices and summons including all proceedings in continuation and in consonance with the notice u/s 148 dated 30.3.2018 said to have been issued and served by the respondent upon the petitioner, though the same is never received by the petitioner.

(D) Award the cost of this petition.

(E) Grant such other and further reliefs as this Hon'ble Court deems fit.”

2. The order passed by a Coordinate Bench of this Court dated 27th November 2018 in the present matter while issuing notice reads thus:

“1. Mr. Darshan Patel, learned advocate for the petitioner has submitted that, in this case, the assessment of the petitioner for the assessment year 201112 is sought to be reopened under section 147 of the Income Tax Act, 1961, however, no notice under section 148 of the Act has been served upon the petitioner. It was submitted that despite aforesaid fact having been brought to the notice of the assessing officer, he has still persisted on continuing with the reopening proceedings. It was submitted that in the absence of service of statutory notice under section 148 of the Act, continuance of the proceedings under section 147 of the Act is without any authority of law. In support of his submission, learned advocate has placed reliance upon the decision of the Delhi High Court in the case of Commissioner of Income Tax (Central)I v. Chetan Gupta, (2015) 62 taxmann.com 249 (Delhi), wherein the Court has held that burden to establish that service of notice has been effected on the assessee or his duly authorized representative is on the revenue.

2. Having regard to the submissions advanced by the learned advocate for the petitioner, issue NOTICE returnable on 7.1.2019. By way of adinterim relief, further proceedings pursuant to the impugned notice are hereby stayed. Direct service is permitted.”

3. Mr. Patel, the learned counsel appearing for the writ applicant vehemently submitted that his client has not been in receipt of the impugned notice issued by the Assessing Officer for reopening of the assessment under Section 148 of the Income Tax Act, 1961 (for short, 'the Act') at any point of time. Mr. Patel, the learned counsel would submit that notice to an assessee under Sections 148 and 143(2) respectively is quite different from a notice under Section 142(1) of the Act. The valid service of notice on the assessee strictly in terms of Section 148 read with Section 282(1) of the Act is mandatory and without such service of notice, the Assessing Officer cannot proceed to make a reassessment. Mr. Patel would submit that the onus is upon the Revenue to establish that the service of notice had been effected on the assessee. The failure to serve su