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2021 (10) TMI 1148 - ITAT MUMBAIValidity of reopening of assessment u/s 147 - notice u/s 148 was not validly served - notice u/s 148 of the Act was issued on 12-03-2014 and it was served on the assessee by way of affixture only after six days, i.e. on 18-03-2014, as per the report of the serving officer -- mandation of serving officer has to show that all due and reasonable diligent efforts were made to serve the assessee/defendant with the notice - HELD THAT:- Without exhausting the regular / ordinary course of service of notice as provided under section 282 of the Act, the assessing officer has straight away proceeded to serve the notice by way of substituted service as provided under Rule 17 and 20 of Order V of CPC - there is nothing on record to suggest that before resorting to substituted service of notice issued under section 148 of the Act, the pre-conditions of Rules 17 and 20 of Order V CPC were satisfied. Nowhere in the assessment order the assessing officer has mentioned even a single sentence to indicate that either the assessee or anyone authorized on his behalf has refused to sign the acknowledgement or the assessing officer even after reasonable attempt has failed to find the assessee at the given address or the assessee has consciously avoided service of notice issued under section 148 of the Act. Thus, in our view, the notice issued under section 148 of the Act was not validly served on the assessee. Therefore, the fundamental requirement for initiation of proceedings under section 147 of the Act stands unsatisfied / unfulfilled. This being a jurisdictional error, the consequence which follows would result in invalidation of the assessment order. Therefore, we hold that the assessment order passed under section 143(3) r.w.s. 147 of the Act without valid service of notice under section 148 of the Act is void ab initio. Eligibility of reasons to believe - As reading of the reasons recorded clearly reveals that being of the view that the assessee has not filed any return of income for the impugned assessment year resulting in escapement of income, the assessing officer has reopened the assessment under section 147 of the Act. However, the facts on record reveal that the assessee, in fact, had filed his return of income for the impugned assessment year on 18-05-2010 declaring total income of ₹ 2,05,448/. It is also evident, the return of income so filed by the assessee was processed under section 143(1) of the Act on 15-04-2011 granting refund of ₹ 7,190/-. Thus, it is very much clear, the reason to believe for reopening of assessment has no nexus with the material on record. Thus due to erroneous assumption of facts while forming belief for reopening of assessment, the proceeding has been vitiated. Consequently, the assessment order passed under section 143(3) r.w.s. 147 of the Act has been rendered invalid. - Decided in favour of assessee.
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